# Ramsey v. Corronado

> District Court, S.D. California · May 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10087676

## Case

- **Court:** District Court, S.D. California
- **Decided:** May 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10087676

## How later opinions describe it (automated extraction)

- stating jail personnel may regulate 12 speech if a restriction is reasonably related to legitimate penological interests and an 13 inmate is not deprived of all means of expression
- stating jail personnel may regulate 12 speech if a restriction is reasonably related to legitimate penological interests and an 13 inmate is not deprived of all means of expression
- holding there is no protected liberty interest to a grievance 14 procedure
- stating a prison official’s denial of a grievance 20 does not itself violate the constitution

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 DANIEL RAMSEY, Case No.: 22-cv-1859-MMA (WVG)
CDCR #K99536
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ORDER: (1) GRANTING MOTION
Plaintiff,
13 TO PROCEED IN FORMA
14 PAUPERIS;

15 vs. (2) DISMISSING DUE PROCESS
16 CLAIM FOR FAILURE TO STATE A
CLAIM UNDER 28 U.S.C.
17 J. CORRONADO, G. ORTIZ, H. §§ 1915(e)(2)(B) & 1915A; AND
18 MOSELEY,
(3) DIRECTING U.S. MARSHAL TO
Defendants.
19 EFFECT SERVICE UPON
DEFENDANTS AS TO PLAINTIFF’S
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FIRST AMENDMENT CLAIMS
21 ONLY PURSUANT TO 28 U.S.C.
§ 1915(d) AND FED. R. CIV. P. 4(c)(3)
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24 I. INTRODUCTION
25 Daniel Chris Ramsey (“Plaintiff” of “Ramsey”), a state inmate currently
26 incarcerated at High Desert State Prison and proceeding pro se, has filed a civil rights
27 action pursuant to 42 U.S.C. § 1983, along with an application to proceed in forma
28 pauperis (“IFP”). Doc. Nos. 6, 7. In his Complaint, Ramsey alleges his Due Process and
1 First Amendment rights were violated when Defendants withheld some of his mail. See
2 Doc. No. 6. For the reasons discussed below, the Court grants Plaintiff’s IFP motion,
3 dismisses his due process claim and directs U.S. Marshal Service of the Complaint as to
4 his First Amendment claim.
5 II. MOTION TO PROCEED IFP
6 All parties instituting any civil action, suit or proceeding in a district court of the
7 United States, except an application for writ of habeas corpus, must pay a filing fee of
8 $402. See 28 U.S.C. § 1914(a). A party may initiate a civil action without prepaying the
9 required filing fee if the Court grants leave to proceed IFP based on indigency. 28 U.S.C.
10 § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007).
11 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit
12 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th
13 Cir. 2015). Prisoners seeking to establish an inability to pay must also submit a “certified
14 copy of the [prisoner’s] trust fund account statement (or institutional equivalent) for . . .
15 the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
16 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
17 trust account statement, the Court assesses an initial payment of 20% of (a) the average
18 monthly deposits in the account for the past six months, or (b) the average monthly
19 balance in the account for the past six months, whichever is greater, unless the prisoner
20 has no assets. See 28 U.S.C. § 1915(b)(1) & (4). Prisoners who proceed IFP must repay
21 the entire fee in installments regardless of whether their action is ultimately dismissed.
22 28 U.S.C. § 1915(b)(2); Bruce v. Samuels, 577 U.S. 82, 84 (2016).
23 Plaintiff has provided a Prison Certificate authorized by an accounting officer.
24 Doc. No. 7 at 1. During the six months prior to filing suit, Plaintiff had an average
25 monthly balance of $0.39, average monthly deposits of $0.29, and had an available
26 balance of $0.12 in his account at the time he filed suit. Id. The Court finds Plaintiff has
27 established an inability to pay the required filing fee and GRANTS Plaintiff’s IFP
28 Motion. While the Court will not assess an initial payment, Plaintiff will be required to
1 pay the full $350 filing fee in installments which will be collected from his trust account
2 as set forth in 28 U.S.C. § 1915(b)(2).
3 III. SCREENING PURSUANT TO 28 U.S.C. § 1915(e) AND § 1915A(b)
4 A. Legal Standards
5 Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), the Court must screen a
6 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous,
7 malicious, fails to state a claim, or seeks damages from defendants who are immune. See
8 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson,
9 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has
10 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the
11 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a
12 claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires
13 that a complaint to “contain sufficient factual matter . . . to state a claim to relief that is
14 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
15 marks omitted). While detailed factual allegations are not required, “[t]hreadbare recitals
16 of the elements of a cause of action, supported by mere conclusory statements, do not
17 suffice” to state a claim. Id. The “mere possibility of misconduct” or “unadorned, the
18 defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility
19 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
20 To state a claim under 42 U.S.C. § 1983, Plaintiff must allege two essential
21 elements: (1) that a right secured by the Constitution or laws of the United States was
22 violated and (2) that the alleged violation was committed by a person acting under the
23 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frey, 789 F.3d
24 1030, 1035‒36 (9th Cir. 2015).
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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52.
27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14
(eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to persons granted leave to
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1 B. Plaintiff’s Allegations
2 In his Complaint, Ramsey alleges that on November 8, 2019, while he was an
3 inmate at R.J. Donovan Correctional Facility (“RJD”), he was sent, via mail, “nude
4 photographs with edited black permanent marker covering” the frontal nudity. Doc. No.
5 6 at 3. Mailroom staff confiscated the photographs and used a “substance/solvent” in an
6 attempt to remove the black markings. Id. After learning the photographs had been
7 confiscated Plaintiff filed an administrative grievance, requesting the photos be given to
8 him because they did not violated regulations set forth by the California Department of
9 Corrections and Rehabilitation (“CDCR”). See Doc. No. 6-2 at 2, 5. Ultimately, the
10 photographs were approved by Officer Garcia, the mailroom supervisor, and Garcia gave
11 them to Ramsey. Doc. No. 6 at 3. Plaintiff then withdrew his administrative grievance.
12 Id.; see also Doc. No. 6-2 at 3.
13 On February 12, 2020, Plaintiff again received photographs with nudity covered by
14 black, permanent marker and they were again confiscated. Doc. No. 3. Ramsey filed
15 another administrative grievance. Doc. No. 6-3 at 3. After a review, Garcia gave
16 Ramsey the photographs and Ramsey withdrew his grievance on March 17, 2020. Id.at
17 4. On the same day, Garcia issued a “128B chrono,”2 noting Ramsey had been given the
18 “allowable photos.” Doc. Nos. 6 at 3, 6-3 at 2.
19 In October of 2020, Ramsey wrote Garcia in anticipation of additional photographs
20 coming in. Garcia “made sure [Ramsey] received his mailed photographs” on that
21 occasion. Garcia also “remind[ed] staff that there were not to confiscate the
22 photographs.” Doc. No. 6 at 3–4. On October 20, 2020, Garcia sent Ramsey a note that
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25 2 The Court takes judicial notice of the CDCR Department Operations Manual (“DOM”), which states
CDC Form 128-B, General Chrono “shall be used by counselors and chaplains when making reports on
26 the religious activity or outside contacts of inmates.” DOM § 72010.7.1 (emphasis added). See Fed. R.
Civ. P. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it
27 . . . (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.”); Brown v. Valoff,
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1 stated, in part, “I have spoken with my staff. Please let me know if this occurs again.”
2 Doc. No. 6-4 at 2. Plaintiff did not have “any problems” receiving his mail after that
3 until 2022. Doc. No. 6 at 4.
4 On May 6, 2022, mailroom staff confiscated photographs from Ramsey’s incoming
5 mail “for further review.” Id.; see also Doc. No. 6-5 at 2. The confiscated photos
6 depicted frontal nudity that was covered with black, permanent marker. Id. The
7 photographs were ultimately reviewed by Defendant Corronado, who concluded they
8 were in violation of CDCR regulations due to “nudity.” Doc. No. 6-5 at 2. Ramsey
9 received a CDCR Form 18193 which informed him the photographs were disallowed
10 because they were in violation of CDCR regulations against nudity. Id. Ramsey filed an
11 administrative grievance, noting that he had “been through th[is] same issue before” and
12 the photos should be approved because the nudity had been covered by permanent
13 marker. Doc. No. 6 at 4. On July 22, 2022, Defendant Moseley denied Ramsey’s appeal,
14 stating the photos depicted “exposed vaginas, bare female breasts, acts of sexual
15 intercourse, & fellatio.” Doc. No. 6-5 at 3. Moseley noted that “some [nudity was]
16 covered with black marker . . .[but] the black marker can be removed.” Id.
17 On July 13, 2022, Ramey received another CDCF Form 1819 notification signed
18 by Defendant Ortiz, informing him the mail contained nude photographs and was being
19 withheld. Id. at 5; see also Doc. No. 6-6 at 2. Ramsey filed a grievance, noting that in
20 the past he had been permitted photographs with the nudity obscured by permanent
21 marker and pointing to the March 17, 2020 chrono issued by Garcia. Doc. No. 6 at 6.
22 Moseley denied Ramsey’s appeal on October 22, 2022, concluding the photographs were
23 “appropriately disallowed” because they contained nudity. Id.; see also Doc. No. 6-6 at
24 3.
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27 3 A CDCR Form 1819 is titled “Notification of Disapproval—Mail / Packages / Publication.” See DOM
§54010.16.
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1 C. Discussion
2 Ramsey contends his First Amendment and Due Process rights were violated by
3 Corronado, Ortiz and Melendez. Specifically, he contends all three defendants
4 improperly categorized the photographs as contraband when the nudity had been
5 completely obscured by black permanent marker. Doc. No. 6 at 3–6. Plaintiff seeks
6 $200,00 in money damages and the return of the confiscated photographs or “similar”
7 photographs. Id. at 8.
8 1. Due Process
9 Plaintiff contends Defendants violated his due process rights by improperly
10 confiscating the photographs from his mail. Id. 3–6. Prisons may regulate the processing
11 of inmate mail so long as those regulations further an important or substantial
12 government interest other than the suppression of expression. See Procunier v. Martinez,
13 416 U.S. 396, 411–12 (1974) (overruled on other grounds, Thornburgh v. Abbott, 490
14 U.S. 401, 412–414 (1989)). Nevertheless, prisoners have a Fourteenth Amendment due
15 process liberty interest in receiving notice that incoming mail has been withheld by
16 prison authorities. Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999). This liberty
17 interest is protected from “arbitrary government invasion,” and any decision to censor or
18 withhold delivery of mail must be accompanied by “minimum procedural safeguards.”
19 Procunier, 416 U.S. at 417–18. These safeguards include: (1) notifying the inmate that
20 the mail was seized; (2) allowing the inmate a reasonable opportunity to protest the
21 decision; and (3) referring any complaints to a prison official other than the one who
22 seized the mail. Id. at 418–19; Krug v. Lutz, 329 F.3d 692, 697–08 (9th Cir. 2003)
23 (“Following Thornburgh, this circuit has repeatedly acknowledged that withholding
24 delivery of inmate mail must be accompanied by the minimum procedural safeguards
25 established in [Procunier].”).
26 Here, Ramsey concedes he was informed his mail was being withheld because the
27 enclosed photos violated CDCR regulations. On both occasions he received notification
28 his mail was “disapproved” via CDCR Form 1819––the first signed by Corronado on
1 May 6, 2022 and the second signed by Ortiz on July 13, 2022. Doc. Nos. 6-5 at 2, 6-6 at
2 2. Ramsey was provided an opportunity to appeal both decisions via administrative
3 grievance, and he did so. See Doc. No. 6 at 4–5. Plaintiff’s grievance appeals were
4 reviewed by Moseley and denied on July 29, 2022 and October 22, 2022, respectively.
5 Doc. Nos. 6-5 at 3, 6-6 at 3. The reason for the denial was explained to Ramsey. See id.
6 As such, Ramsey received all the process he was due. Thus, to the extent he claims his
7 due process rights were violated by withholding his mail, he has failed to state a claim.
8 Procunier, 416 U.S. at 417–18
9 Furthermore, to the extent Ramsey alleges Mosely also denied him due process
10 when he denied his administrative appeals, Ramsey also fails to state a claim. Inmates
11 have no stand-alone due process right related to administrative grievance process.
12 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639,
13 640 (9th Cir. 1988) (holding there is no protected liberty interest to a grievance
14 procedure). California’s regulations grant prisoners a purely procedural right: the right to
15 have a prison appeal. See Cal. Code Regs. tit. 15, §§ 3084–3084.9 (2014). In other
16 words, prison officials are not required under federal law to process inmate grievances in
17 a certain way. Thus, the denial, rejection, screening out of issues, review, or cancellation
18 of a grievance does not constitute a due process violation. See, e.g., Evans v. Skolnik,
19 637 F. App’x 285, 288 (9th Cir. 2015) (stating a prison official’s denial of a grievance
20 does not itself violate the constitution); Towner v. Knowles, No. S-08-cv-2823-LKK-
21 EFB, 2009 WL 4281999 at *2 (E.D. Cal. Nov. 20, 2009) (finding allegations that prison
22 officials screened out inmate appeals without any basis failed to indicate a deprivation of
23 federal rights); Williams v. Cate, 1:09-CV-00568-OWW-YNP PC, 2009 WL 3789597, at
24 *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in the
25 vindication of his administrative claims.”). Therefore, Ramsey cannot state a due process
26 claim against Moseley for denying his administrative appeals. See Ramirez, 334 F.3d at
27 860.
28 In sum, Plaintiff has failed to state a due process claim upon which relief may be
1 granted against Corronado, Ortiz or Moseley. See 28 U.S.C. §§ 1915(e)(2)(B)(ii),
2 1915A(b)(1); Iqbal, 556 U.S. at 678; Lopez, 203 F.3d at 1126–27.
3 2. First Amendment
4 Ramsey also alleges Defendants Corronado, Ortiz and Moseley violated his First
5 Amendment rights when they confiscated photographs which did not depict nudity. Doc.
6 No. 6 at 3–6. Prisoners enjoy a First Amendment right to send and receive mail. See
7 Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh, 490 U.S. at 407).
8 A prison, however, may adopt regulations or practices which impinge on a prisoner’s
9 First Amendment rights so long as the regulations are “reasonably related to legitimate
10 penological interests.” See Turner v. Safley, 482 U.S. 78, 89 (1987); Valdez v.
11 Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002) (stating jail personnel may regulate
12 speech if a restriction is reasonably related to legitimate penological interests and an
13 inmate is not deprived of all means of expression). The Turner standard applies to
14 regulations and practices concerning all correspondence between prisoners and to
15 regulations concerning incoming mail received by prisoners from non-prisoners. See
16 Thornburgh, 490 U.S. at 413.
17 Here, Plaintiff alleges his mail was improperly withheld for depicting frontal
18 nudity when, in fact, no nudity was shown. Specifically, both the May 6, 2022 and the
19 July 13, 2022 “Notification[s] of Disapproval for Mail” indicate the photos were
20 confiscated under California Code of Regulations §§ 3135(d)(1), and 3006(c)(17), both
21 of which prohibit possessing or receiving in the mail “sexually explicit” images that
22 depict “frontal nudity.” See Doc. Nos. 6-5 at 2, 6-6 at 2; see also Cal. Code Regs., tit. 15
23 §§ 3135(d)(1), 3006(c)(17). The notifications also cited DOM § 54010.14 as a basis for
24 confiscating the photos. See Doc. Nos. 6-5 at 2, 6-6 at 2. Section 54010.14 prohibits the
25 receipt of “obscene materials,” which include sexually explicit images that “show frontal
26 nudity including personal photographs, drawings, and magazines and pictorials that show
27 frontal nudity.” See DOM §§ 54010.14, 54010.15.
28 Ramsey does not challenge the CDCR regulations barring “sexually explicit”
1 photographs depicting frontal nudity. Instead, he alleges the confiscated photographs
2 were not prohibited under the cited regulations because the frontal nudity had been
3 completely obscured by black permanent marker. Ramsey points to photographs he
4 previously received after appeal, in which the frontal nudity was similarly blacked out.
5 Thus, he alleges Corronado, Ortiz and Melendez withheld the photographs despite
6 lacking a legitimate penological interest in doing so. Taking Ramsey’s allegations as
7 true, the Court finds his First Amendment claims against Defendants Corronado, Ortiz
8 and Moseley survive the “low threshold” set for sua sponte screening pursuant to 28
9 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at
10 678; Turner, 482 U.S. at 89; see Thornburgh, 490 U.S. at 413.
11 IV. CONCLUSION
12 For the reasons set forth above, the Court hereby:
13 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
14 (Doc. No. 7).
15 2. ORDERS the Secretary of the CDCR, or his designee, to collect from
16 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly
17 payments from the account in an amount equal to twenty percent (20%) of the preceding
18 month’s income and forward payments to the Clerk of the Court each time the amount in
19 the account exceeds $ 10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS
20 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED
21 TO THIS ACTION.
22 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff
23 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by
24 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.
25 4. DISMISSES Plaintiff’s Due Process claims as to all Defendants pursuant to
26 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
27 5. DIRECTS the Clerk to issue summonses as to Plaintiff’s Complaint (Doc.
28 No. 6) upon Defendants and forward them to Plaintiff along with a blank U.S. Marshal
1 Forms 285. In addition, the Clerk will provide Plaintiff with certified copies of this
2 Order, a certified copy his Complaint, and the summonses so that he may serve the
3 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Forms 285
4 as completely and accurately as possible, include an address where Defendants may be
5 served, see S.D. Cal. Civ. L.R. 4.1.c, and return them to the United States Marshal
6 according to the instructions the Clerk provides in the letter accompanying his IFP
7 package.
8 6. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons
9 upon Defendants as directed by Plaintiff on the USM Forms 285 provided, and to file
10 executed waivers of personal service upon Defendants with the Clerk of Court as soon as
11 possible after their return. Should a Defendant fail to return the U.S. Marshal’s request
12 for waiver of personal service within 90 days, the U.S. Marshal shall instead file the
13 completed Form USM 285 Process Receipt and Return with the Clerk of Court, include
14 the date the summons, Complaint and request for waiver was mailed to that Defendant,
15 and indicate why service upon the party remains unexecuted. All costs of that service
16 will be advanced by the United States; however, if a Defendant located within the United
17 States fails, without good cause to sign and return the waiver requested by the Marshal on
18 Plaintiff’s behalf, the Court will impose upon the Defendant any expenses later incurred
19 in making personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
20 7. ORDERS Defendants, once they have been served, to reply to Plaintiff’s
21 Complaint, and any subsequent pleading they may file in this matter in which they are
22 named as parties, within the time provided by the applicable provisions of Federal Rule
23 of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (stating that while a
24 defendant may occasionally be permitted to “waive the right to reply to any action
25 brought by a prisoner confined in any jail, prison, or other correctional facility under
26 section 1983,” once the Court has conducted its sua sponte screening pursuant to 28
27 U.S.C. §§ 1915(e)(2) and 1915A(b), and thus, has made a preliminary determination
28 based on the face on the pleading that Plaintiff has a “reasonable opportunity to prevail
1 |}on the merits,” defendant is required to respond).
2 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to
3 serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’
4 || counsel, a copy of every further pleading, motion, or other document submitted for the
5 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every
6 || original document he seeks to file with the Clerk of the Court, a certificate stating the
7 |}manner in which a true and correct copy of that document was served on Defendants or
8 || their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document
9 || received by the Court which has not been properly filed with the Clerk, or which fails to
10 include a Certificate of Service upon the Defendants, may be disregarded.
1] IT IS SO ORDERED.
12 Dated: May 24, 2023
13 Mikel lM =f phlr
14 HON. MICHAEL M. ANELLO
15 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10087676. Public record. Not legal advice.