Opinion
ORDER REQUIRING PLAINTIFF TO SERVE COMPLAINT ON DEFENDANTS WITHIN ONE-HUNDRED TWENTY DAYS
DENNIS L. BECK, Magistrate Judge.
Plaintiff Henry M. Mitchell ("Plaintiff') is a state prisoner proceeding pro se in this civil rights action pursuant to 28 U.S.C. § 1983. He paid the filing fee and is therefore not proceeding in forma pauperis. Plaintiff filed his complaint on March 12, 2012. The Court has ordered that this action go forward against Defendants Bolen and Seifert for violation of the First Amendment.
Plaintiff consented to the jurisdiction of the United States Magistrate Judge on April 30, 2012.
Plaintiff is not proceeding in forma pauperis and is therefore responsible for serving Defendants Bolen and Seifert in accordance with Rule 4 of the Federal Rules of Civil Procedure. Included with this order are the appropriate service forms and a copy of Rule 4. Unless good cause for an extension of time is shown, Plaintiff must complete service of process and file proof thereof with the Court within one-hundred twenty days. Fed.R.Civ.P. 4(m). The following two sections contain instructions on how to serve Defendants.
A. Instructions on Completing Service
1. Waiver of Service
Plaintiff has the option of notifying Defendants of the commencement of this action and requesting that they waive service of the summons. Fed.R.Civ.P. 4(d)(1). If Plaintiff wishes to do this, he must mail each Defendant (1) the form entitled "Notice of Lawsuit and Request for Waiver of Service for Summons, " (2) the form entitled "Waiver of Service of Summons, " (3) a copy of the Complaint, and (4) a copy of this order. The documents must be addressed directly to each Defendant (not the Attorney General's Office or any other governmental entity), and the documents must be sent by first-class mail or other reliable means. Id . The Waiver of Service of Summons form must set forth the date on which the request is sent and must allow each Defendant at least thirty days to return the waiver to Plaintiff If Defendants sign and return the waiver forms to Plaintiff, Plaintiff must then file the forms with the Court. After filing the forms with the Court, Plaintiff does not need to do anything further to serve Defendants. Fed.R.Civ.P. 4(d)(4).
2. Personal Service
Plaintiff must effect personal service on any Defendants whom Plaintiff does not request to waive service and on any Defendants who are requested to waive service but fail to return the Waiver of Service of Summons form to Plaintiff. In either situation, the summons, a copy of the Complaint, and a copy of this order must be personally served on each Defendant (not the Attorney General's Office or any other governmental entity). Plaintiff may not effect personal service himself. Fed.R.Civ.P. 4(c)(2). Service may be effected by any person who is not a party to this action and who is at least eighteen years old. Id . Plaintiff should review Rule 4(e), provided with this order, as it more fully addresses how personal service is effected.
B. Order
In accordance with the above, it is HEREBY ORDERED that:
1. The Clerk of the Court shall issue and send Plaintiff 2 summonses, and shall send Plaintiff one copy of the following documents:
a) Complaint filed on March 12, 2012;
b) "Notice of Lawsuit and Request for Waiver of Service of Summons;"
c) "Waiver of Service;" and
d) Rule 4 of the Federal Rules of Civil Procedure;
2. Plaintiff shall complete service of process on Defendants Bolen and Seifert within one-hundred twenty (120) days from the date of service of this order; and
3. Unless good cause is shown, Plaintiff's failure to complete service of process on Defendants Bolen and Seifert and to file proof thereof with the Court within one-hundred twenty days will result in dismissal of this action.
IT IS SO ORDERED.
I. EXHAUSTION OF ADMINISTRATIVE REMEDIES
A. Place of confinement: California State Prison-Corcoran.
B. There is a grievance procedure at this institution.
C. The facts in this complaint were presented for review through the grievance procedures.
D. The Appeal Log Number Assigned was: #CSPC-2-11-02098.
1. First Level Review: Submitted ” August 25, 2011 Appeal Decision: Denied ” October 4, 2011
2. Second Level Review: Submitted ” October 6, 2011 Appeal Decision: Denied ” October 31, 2011
3. Third Level Review: Submitted ” November 30, 2011 Appeal Decision: Denied ” February 16, 2012
E. The third level is the highest level of appeal available
II. PARTIES
1. Plaintiff: Henry M. Mitchell Jr., aka Henry Hayes, #V16058 California State Prison-COR P.O. Box 3461 Corcoran, CA 93212-3461
2. Defendants:
a. Connie Gipson, Warden, California State Prison-COR
b. R. Bolen, Mailroom Staff, California State Prison-COR
c. M. Seifert, Captain, California State Prison-COR
d. D. Leon, Associate Warden, California State Prison-COR
e. A. Gutierrez, OSSI, California State Prison-COR
f. R. Juarez, Lieutenant, California State Prison-COR
g. S. Johnson, Chief Deputy Warden, California State Prison-COR
h. K.J. Allen, Appeals Examiner, Department of Corrections and Rehabilitation
i. D. Foston, Chief Office of Appeals, Department of Corrections and Rehabilitation
j. Matthew sate, Secretary, Department of Corrections and Rehabilitation
k. United States Postal Service, a federal government §501(a) Corporation
III. STATEMENT OF CLAIM
On August 23, 2011, Defendant R. Bolen, sent Plaintiff, CDCR Form 1819 (Rev. 6/98) ” Notification of Disapproval ” Mail/Package/Publications of Incoming Mail/Package. The seizure of the incoming mail/package was based upon the disapproval criteria: "Incoming mail ezceeding 16 ounces per CCR Title 15 §3134(a)(11)." The authority to disallow based on the cited disapproval criteria was done by Defendant M. Seifert.
On August 25, 2011, Plaintiff filed Inmate/Parolee Appeal Form CDCR 602 (Rev. 08/98). Plaintiff explained the issue on the First Level that, "On 8-23-11, an incoming mail/package was disapproved due to the mail/package exceeding 16 ounces in total weight, per CCR Title 15 §3134(a)(11), the statute cited is not and has no relation to a restriction on the weight of an incoming mail/package item. 15 CCR §3134(a) states, First-Class mail can have the following items enclosed, including but not limited to: Subdivision (11) is restrictive only to a mail/package that has more than Forty postage stamps, or a Photo album enclosed within it. The mailroom is reading the statute too broadly beyond its meaning. The statute gives direction for how many stamps are needed to satisfy an outgoing first-class latter sent out by an inmate. The items for enclosure can weight more than 16 ounces.
On September 20, 2011, Plaintiff was interviewed by Defendant A. Gutierrez, who ask Plaintiff if he had any additional issues concerning the appeal. Plaintiff requested any written Memorandum or Mailroom Policies that gave the CDCR any jurisdiction to have regulations over the weight of incoming mail from the U.S. Postal Service, and stated that Plaintiff believed that Title 15, 3134(a) (11) had no relation to the weight of my package.
On October 4, 2011, Plaintiff received Denial of Appeal Notification from Defendant D. Leon with a copy of §3134 of Title 15 from page 73 of unknown edition, and copy of Attachment A (Rev. 9/08) Effective Communication Determination For Formal Level CDC 602 Inmate/Parolee Appeal.
On October 6, 2011, Plaintiff submitted CDCR 602 for a Second Level review from dissatisfaction with the First Level response, stating, "15 CCR §3136 ” Disapproval of Inmate Mail is based on criteria established under 15 CCR Section 3006 Contraband and Section 3135 Disturbing or Offensive Correspondence. The disapproval of mail exceeding a weight limit is not contained within those statute codes to permit the denial of my mail privileges."
On October 31, 2011, Defendant R. Juarez, signed off on the CDCR 602 as interviewer, when no interwiew every took place, by face to face contact, or telephone. "The Decision: Your appeal is Denied at the Second Level. Denied is your request to have this appeal immediately granted and your mail/package promptly delivered to you, as it is clearly violates California Code of Regulations Title 15, 3134. (a.)(11), General Mail Regulastions. Per California Code of Regulations Title 15, 3136, the mailroom at CSP-Corcoran has made proper notification to you with the 1819 you attached to your appeal and therefore are working within the policy and procedure." The Second Level Response also noted in the Problem Description: "The total weight of the incoming mail was 36 ounces which is 20 ounces over the 16 ounce limit." Defendant S. Johnson, signed off on the Second Level Response.
On November 30, 2011, Plaintiff forwarded the CDCR 602 for the Chief, Inmate Appeals Branch for Third Level review for dissatisfaction of the First and Second Level responses. Plaintiff noted to the Third Level that, "The prohibition of incoming general mail based on the weight limit for first-class mail is 13 ounces, and for standard mail is 16 ounces' is unlawful censorship of United States Mail. The regulation is an interference with federal postal transmission, the unlawful restriction of interstate commerce, nor has the U.S. Postal Service granted jurisdiction to the CDCR to control first-class or standard rate mail based on incoming weight or postage class. The incoming mail package materials are not prohibitive as contraband, or disturbing offensive correspondence as codified in 15 CCR §§3006; 3135. The prohibitive regulation is a consequential restriction of the First and Fourteenth Amendment rights of those who are not prisoners, and creates an impermissible legislative mandate not within California's jurisdiction to censorship of U.S. Mail based on weight or postage class. The materials are legal case citations that were to be used in my instant litigation for my criminal appeal, which unlawful detention of mail based on weight and postage class also violates my right to due process and my access to legal materials.
On February 16, 2012, the third level decision: Appeal is denied by Defendants K.J. Allen and D. Foston, who concluded the following findings. Upon review of the documentation submitted, it is determined that the appellant's allegations have been reviewed and properly evaluated by administrative staff at COR. The appeal' appellant has failed to provide a compelling argument to warrant a modification of the decision reached by the institution. An appeal inquiry was conducted by appropriate supervisory staff, and the appeal was reviewed by the institution's Chief Deputy Warden.
Pursuant to CDCR rules the appellant's mail was appropriately disallowed based upon the excess weight.
The appellant is unacquainted with institutional security needs and his claim that there are no potential risks/complications with inmates receiving unrestricted weight in mail packages is misguided. The Director has the authority and responsibility to establish rules which. regulate institutional programs and activities in a manner that ensures the safety of inmates, staff and the public. The appellant is responsible to abide by all departmental rules and regulations. Upon review of the documentation submitted, it is determined that the appellant's arguments are without merit. Relief at the Third Level of Review is unwarranted.
Defendants Connie Gipson and Matthew. Kate are the designated authorities responsible to discharge CDCR rules and regulations burdens fundamental rights are reasonably related to legitimate penological objectives, or whether it represents an exaggerated response to those concerns. The third level review cited CCR sections 3001, 3084.1, 3130, 3147, 3270, 3380 and CDC Operations Manual, Section 54010.4 as the basis for the decision. An ordered no changes or modifications are required by the institution.
Defendant, United States Postal Service failed to provide oversight for this type of complaint that is within its jurisdiction to regulate incoming mail class and postage for any' such violation under the detention of mail for temporary periods, and the forfeiture, seizure or confiscation of property carried through its mail facilities and post offices.
IV. RELIEF REQUESTED
Plaintiff seeks the following relief:
1. Injunctive and declaratory relief;
2. reimbursement of court cost and fees;
3, general damages of $12,500.00 per defendant;
4. punitive damages of $25,000.00 per defendant; and
5. any other relief the court feels appropriate.
I declare under the penalty of perjury that the foregoing is true and correct.