Opinion
Case No. 2:08-cv-02767-MSB.
November 20, 2009
ORDER
This case was reassigned to the undersigned judge. (Dkt. # 13). Plaintiff Michael Aaron Jayne, who is currently confined in the Klamath County Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. (Dkt. #s 1, 17). After reviewing Jayne's Application to Proceed In Forma Pauperis and Trust Account Statement (Dkt. #s 2, 9), the Court will grant Jayne's request to proceed in forma pauperis. In addition, after reviewing the docket and record, the Court will deny Jayne's Motion for Preliminary Injunction (Dkt. #8) and Emergency Motion for Preliminary Injunction (Dkt. #12) as moot. Finally, after screening Jayne's Complaint pursuant to 28 U.S.C. § 1915A, to the extent discussed below, the Court will order Defendants Abney, Anderson, Ashman, Bosenko, Champagne, Gonzalez, Heyde, Johnson, Joiner, Meek, Mitchell, Penland, and Van Buskirk to answer Jayne's Complaint as discussed in this order. The Court will dismiss the remaining defendants without prejudice.
I. Application to Proceed In Forma Pauperis Filing Fee
Jayne requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Dkt. #2). Jayne has made the showing required by § 1915(a)(1), (2) and his request to proceed in forma pauperis will be granted. (Dkt. #s 2, 9). Pursuant to 28 U.S.C. § 1915(b)(1), Jayne is obligated to pay the statutory filing fee of $350.00 for this action. An initial partial filing fee will not be assessed (due to Jayne's negative balance). Jayne is required to make monthly payments of twenty percent of the preceding month's income credited to his account. By separate order, the Court will direct the California Department of Corrections to collect these payments and forward them to the Clerk of the Court each time the amount in Jayne's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 1915(b).
II. Motion for Preliminary Injunction
Months before this case was reassigned to me, Jayne filed a motion for preliminary injunction, requesting that the Court order Defendant Bosenko to end Jayne's "disciplinary diet" and to provide Jayne access to counsel (Dkt. #8), and an emergency motion for preliminary injunction, requesting that the Court "instruct Sheriff Tom Bosenko to immediately house Plaintiff in the [Shasta County] Jail until his trial [set for February 10, 2009." (Dkt. #12). Jayne has since, however, filed a notice of change of address, reflecting that he is now housed in the Klamath County Jail in Klamath Falls, Oregon. (Dkt. #s 15, 17). Thus, as it appears that Jayne's requested relief is no longer available, his motion for preliminary injunction and emergency motion for preliminary injunction are denied as moot.
III. Motion for Appointment of Counsel/90-Day Extension
In both this case and an unrelated case assigned to Judge Lawrence K. Karlton, Case No. 2:07-cv-02522-LLK (GGH), Jayne has filed a motion to appoint counsel or in the alternative for an "emergency temporary injunction" or an extension of time to file a response to the defendants' motion for summary judgment. (Dkt. #18). In support of his motion, Jayne states that he has been temporarily denied access to the law library at the Coffee Creek Correctional Facility in Wilsonville, Oregon during "intake" and thus will be unable to timely respond to the defendants' motion for summary judgment. There is no pending motion for summary judgment in this case. Nor does Jayne appear to request that counsel be appointed to represent him in this case. Therefore, the Court will deny Jayne's motion as it is more appropriately directed to Judge Karlton in Case No. 2:07-cv-02522-LLK (GGH).
IV. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
V. Background
Jayne is currently housed at the Klamath County Jail in Klamath Falls, Oregon. (Dkt. #15). From October 2007 until at least November 2008, when he filed his complaint, Jayne was a pre-trial detainee at the Shasta County Jail in Redding, California, where the events Jayne complains of allegedly occurred. (Dkt #1 at 3). In sum, Jayne claims that he was subjected to "extreme methods of punishment" and denied access to counsel in violation of his civil rights. (Id.).
Jayne alleges that he was placed in "a safety isolation cell on numerous occasions for up to 12 hours." (Id.). In addition, Jayne alleges that Defendant Ashman prohibited visitation with his family ( id. at 3, 8) and confiscated his clothing as punishment. ( Id. at 4).
Jayne also alleges that Ashman forced him to eat a "disciplinary loaf only twice a day" for approximately one month by the time of his complaint, and that Ashman ordered that Jayne remain on a disciplinary diet for several more months. (Id.). Jayne states that he is provided "well below the national standard of a 2500-3000 calorie intake" and has lost twenty-three pounds of weight as a result of this disciplinary diet. ( Id. at 9). Jayne admits, however, that this disciplinary measure was taken "as punishment for rule violations." ( Id. at 4).
Jayne contends that several conditions of his confinement at the Shasta County Jail constituted "torture" and "cruel and unusual punishment" in violation of the Eighth Amendment. ( Id. at 1). He alleges that Ashman and Defendant Van Buskirk kept him confined to his cell "everyday for over 13 months . . . only coming out of his cell 30 minutes every other day." ( Id. at 4). He also alleges that Bosenko kept "a bright light on in his cell 24 [hours] a day." ( Id. at 7). And although he admits that the light has a "low" setting, he alleges that it is still so bright that sleeping for 8 hours is impossible." ( Id. at 7-8). Jayne then alleges that Van Buskirk created "nothing less than torture" by covering jail windows to block out natural light and create "sensory deprivation." ( Id. at 7). Plus, Jayne alleges that Bosenko, Ashman, and Van Buskirk forced him to wear "jail jap flaps," which are "comparable to walking bare footed," causing pain in his lower back and feet. ( Id. at 10). Jayne further alleges that Bosenko and Defendants Barnes and Johnson have been indifferent to his medical needs by refusing to provide his normal prescription of "Ativan" to treat his "chronic anxiety, including mood disorder and depression and intermitent [sic] explosive disorder." ( Id. at 7). Moreover, Jayne alleges that Bosenko and Defendant "Barbara," the Jail Medical Director, have been indifferent to his medical needs by requiring him to pay for an eye exam. ( Id. at 8).
Jayne further alleges that defendants have restricted his access to courts in several ways. He alleges that Ashman and Van Buskirk denied him telephonic access to his attorney, except during "his 30 minute time out every other day which normally is at night." ( Id. at 4). Jayne also alleges that Ashman read through and delayed the delivery of his outgoing legal mail. ( Id. at 5). Jayne further contends that Bosenko and Ashman have implemented "draconian policies" by charging Plaintiff for legal supplies. ( Id. at 9). In addition, Jayne alleges that Bosenko, Ashman, Van Buskirk, and Defendants Meek, Champagne, Gonzalez, Penland, Heyde, Mitchell, Joiner, Abney, Anderson, and Global Tel Link engaged in recording and monitoring his calls to his attorney. ( Id. at 5). This call monitoring allegedly resulted in administrative discipline and referrals for criminal prosecution. ( Id.). Champagne, Van Buskirk, Ashman, Meek, Abney, Anderson, Mitchell, Gonzalez, and Defendant User then allegedly conspired to "cover up and erase all recorded calls." ( Id. at 6). Moreover, Jayne alleges a second conspiracy involving Anderson, Ashman, Van Buskirk, and Abney to transfer Jayne to the High Desert State Prison, where Jayne would have "no access to his counsel." ( Id.).
Finally, Jayne makes several miscellaneous claims: He alleges that Defendants Rogers and Church "physically assaulted [him] by pushing him" ( id. at 9), that Bosenko and Van Buskirk engaged in "price gouging" by charging him high rates for collect calls ( id. at 6), and that Defendant Zufall "stole all of [Jayne's] family photographs and 2 books." ( Id. at 5).
VI. Discussion
42 U.S.C. § 1983 provides a cause of action against persons acting under color of state law who have violated rights guaranteed by the United States Constitution. See Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995); Demery v. Kupperman, 735 F.2d 1139, 1146 (9th Cir. 1984). To state a valid claim for relief under § 1983, a plaintiff must allege that he suffered a specific injury as a result of a defendant's specific conduct and show an affirmative link between the injury and that defendant's conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).
A. Pleading Standard
B. "All Defendants"
Pro se Hains v. Kerner,404 U.S. 519520-21pro se showing88Ashcroft v. Iqbal,129 S. Ct. 19371949Id.
Several of Jayne's claims are made against "all defendants." For example, Jayne alleges that "all defendants are in and have been in a [sic] active conspiracy." (Dkt. #1 at 3). First, "[t]o state a claim for a conspiracy . . . under section 1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy." Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989). Jayne does not allege facts supporting an overarching conspiracy. Thus, Jayne's claim for conspiracy is dismissed without prejudice. Second, "[t]he inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Thus, the defendants-Abernathy, Baker, Craig, Global Tel Link, Marlar, Miller, Millis, and Viser-who are not specifically alleged to have caused one of the constitutional deprivations discussed below are dismissed without prejudice.
C. Pretrial Detainees
Pre-trial detainees "are protected by the Fourteenth Amendment's Due Process Clause, as well as specific substantive guarantees of the federal Constitution, such as the First and Eighth Amendments." Pierce v. County of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008). Under the Due Process Clause, "detainees have a substantive due process right against restrictions that amount to punishment." Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir. 2002) (citing United States v. Salerno, 481 U.S. 739, 746 (1987)). "For a particular governmental action to constitute punishment, (1) that action must cause the detainee to suffer some harm or `disability,' and (2) the purpose of the governmental action must be to punish the detainee." Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004) (citing Bell v. Wolfish, 441 U.S. 520, 538 (1979)). In the first step of this inquiry, "the harm or disability . . . must either significantly exceed, or be independent of, the inherent discomforts of confinement." Id. at 1030 (citing Bell, 441 U.S. at 537). To determine punitive intent, courts "first examine whether the restriction is based upon an express intent to inflict punishment." Valdez, 302 F.3d at 1045 (citing Salerno, 481 U.S. at 746). Courts "next consider whether punitive intent can be inferred from the nature of the restriction. This determination . . . will generally turn upon `whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether [the restriction] appears excessive in relation to the alternative purpose assigned [to it].'" Id. (citing Bell, 441 U.S. at 539) (brackets in original).
D. Express Punishment
Jayne has alleged that certain defendants expressly intended to punish him for reasons other than prison rule violations. For instance, Jayne alleges that Ashman "ordered [Jayne's] clothes to be restricted forever as punishment . . . [to] prevent him from recreating [sic] exercising [sic] outside in inclement weather where he will freeze with no shirt." (Dkt. #1 at 4). Taken in the light most favorable to him, Jayne sufficiently alleges a harm greater than any restriction on clothing inherent in confinement and an express intent to punish.
Jayne fails, however, to allege express punishment in his placement in a safety isolation cell or on 24-hour lockdown. Jayne alleges only that he has been intermittently placed in a safety isolation cell and on 24 hour lockdown for over 13 months. Jayne does not allege specific conduct by any specific defendant that resulted in his placement in isolation or on lockdown. Thus, Jayne fails to state a claim with regard to express punishment through isolation or lockdown.
E. Conditions of Confinement
A district court may infer punitive intent from a detainee's conditions of confinement, and in doing so may look to the standards developed under the Eighth Amendment's prohibition against cruel and unusual punishment. See, e.g., Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) ("Because pretrial detainees' rights under the Fourteenth Amendment are comparable to prisoners' rights under the Eighth Amendment, . . . we apply the same standards."). In fact, a violation of the Eighth Amendment "will always violate substantive due process." Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1121 n. 11 (9th Cir. 2003). In other words, "the guarantees of the Eighth Amendment provide a minimum standard of care for determining [detainees'] rights." Id. at 1120.
To state a claim against a prison official under the Eighth Amendment, a prisoner must satisfy two requirements: (1) an objective requirement that "the deprivation alleged . . . be sufficiently serious," and (2) a subjective requirement that the "prison official [] have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotation omitted).
The objective requirement is met where the prison official's act or omission results in "the denial of `the minimal civilized measure of life's necessities.'" Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). "Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety." Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (citing Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). "The circumstances, nature, and duration of a deprivation of these necessities must be considered in determining whether a constitutional violation has occurred. `The more basic the need, the shorter the time it can be withheld.'" Id.
The subjective requirement is met where the prison official acts with "`deliberate indifference' to inmate health or safety." Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 302-03 (1991)). A prison official acts with deliberate indifference when he "knows of and disregards an excessive risk to inmate health or safety." Id. at 837. In other words, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id.
In his complaint, Jayne alleges facts sufficient to support claims for violations of the Eighth and Fourteenth Amendments with regard to inadequate food, constant lighting, inadequate clothing, and medical indifference to his mental health. He fails, however, to state claims with respect to outdoor exercise, isolation, sensory deprivation, and fees for medical care.
i. Inadequate Food
"Adequate food is a basic human need protected by the Eighth Amendment." Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996) (citing Ray, 682 F.2d at 1246), amended by 135 F.3d 1318 (9th Cir. 1998). "While prison food need not be `tasty or aesthetically pleasing,' it must be `adequate to maintain health.'" Id. (quoting LeMaire v. Maass, 12 F.3d 1444, 1456 (1993)). The Supreme Court has stated that a disciplinary diet providing less than 1,000 calories per day "might be tolerable for a few days and intolerably cruel for weeks or months." Hutto v. Finney, 437 U.S. 678, 687 (1978); see also Foster v. Runnels, 554 F.3d 807, 812-13 (9th Cir. 2009) (holding that an allegation that 16 meals had been withheld over 23 days, leading to weight loss and dizziness was sufficient to state a claim).
In his complaint, Jayne alleges that Ashman forced him to eat a "disciplinary loaf only twice a day" for approximately one month and ordered that he remain on the diet for several more. (Dkt. #1 at 4). Jayne also alleges that the diet provided insufficient nutrition and resulted in "rapid weight loss." ( Id. at 9). Those allegations are sufficient to state a claim against Ashman under the Eighth and Fourteenth Amendments for a lack of adequate food.
ii. Constant Lighting
"Adequate lighting is one of the fundamental attributes of `adequate shelter' required by the Eighth Amendment." Keenan, 83 F.3d at 1090 (citing Hoptowit v. Spellman, 753 F.2d 779, 783 (9th Cir. 1985)). "Moreover, there is no legitimate penological justification for requiring inmates to suffer physical and psychological harm by living in constant illumination. This practice is unconstitutional." Id. (internal quotation marks and brackets omitted).
In his complaint, Jayne alleges that Bosenko kept "a bright light on in his cell 24 [hours] a day," which, even on its "low" setting, was "so bright that sleeping for 8 hours is impossible." (Dkt. #1 at 7-8). Those allegations are sufficient to state a claim against Bosenko under the Eighth and Fourteenth Amendments for inadequate lighting in Jayne's cell.
iii. Clothing
"The denial of adequate clothing can inflict pain under the Eighth Amendment." Walker v. Sumner, 14 F.3d 1415, 1421 (9th Cir. 1994) (citing Ray, 682 F.2d at 1246). The Ninth Circuit has "suggested that depriving an inmate of a jacket could violate the Eighth Amendment under some weather conditions." Johnson, 217 F.3d at 732 (citing Walker, 14 F.3d at 1421). Factors relevant to determining when a constitutional violation occurs include the weather conditions at the time, any pain inflicted by the clothing restriction, and the clothing that is in fact available to the inmate at the time. Walker, 14 F.3d at 1421.
Jayne alleges that Ashman restricted his clothing such that he was unable to exercise "outside in inclement weather where he will freeze with no shirt." (Dkt. #1 at 4). Jayne also alleges that Ashman, Bosenko, and Van Buskirk "forced [him] to wear" footwear that caused him lower back and foot pain. ( Id. at 10). These allegations are sufficient to state a claim against Ashman, Bosenko, and Van Buskirk for inadequate clothing.
iv. Indifference to Mental Health
A prison official violates the Eighth Amendment when the official acts with "deliberate indifference to serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1976). "These requirements apply to physical, dental and mental health." Ray, 682 F.2d at 1253. The medical need alleged "must be, objectively, `sufficiently serious.'" Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 303 (1991)). Factors indicating a serious medical need include: (1) whether a reasonable doctor would consider the condition "worthy of comment or treatment," (2) whether the condition "significantly affects an individual's daily activities," and (3) whether the condition involves "chronic and substantial pain." Lopez, 203 F.3d at 1131.
To demonstrate deliberate medical indifference, a plaintiff must show both "a purposeful act or failure to respond to a prisoner's pain or possible medical need and . . . harm caused by the indifference." Jett v. Penner, 439 F.3d 1091, 1097 (9th Cir. 2006) (citation omitted). "Prison officials are deliberately indifferent to a prisoner's serious medical needs when they `deny, delay or intentionally interfere with medical treatment.'" Lopez, 203 F.3d at 1131.
In his complaint, Jayne alleges that he suffers from "chronic anxiety, including mood disorder and depression and intermittent explosive disorder." (Dkt. #1 at 7). He also alleges that he is normally prescribed Ativan to treat this condition, but Barnes, Bosenko, and Johnson refused to provide him with "this type of medication." (Id.). Although Jayne does not allege that he has been denied all types of medication, drawing all inferences in his favor at this stage Jayne's allegations are sufficient to state a claim against Barnes, Bosenko, and Johnson under the Eighth and Fourteenth Amendments for inadequate medical care.
v. Confinement and Outdoor Exercise
"[E]xercise has been determined to be one of the basic human necessities protected by the Eighth Amendment, and a long-term deprivation of outdoor exercise for inmates is unconstitutional." Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005) (internal quotation marks and citations omitted); see Toussaint v. Yockey, 722 F.2d 1490, 1492-93 (9th Cir. 1984) (finding "a substantial constitutional question" where inmates were confined to cells for up to 23 1/2 hours a day for over one year). "[O]ther [circuits] have held that detainees . . . are ordinarily entitled to daily exercise, or five to seven hours of exercise per week, outside their cells." Pierce, 526 F.3d at 1212 (citing Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir. 1980); Housley v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994)).
Here, Jayne alleges that he has been subject to a lockdown for "over 13 months . . . only coming out of his cell 30 minutes every other day." (Dkt. #1 at 3). Although the Ninth Circuit has not identified "a specific minimum amount of weekly exercise that must be afforded to detainees," Jayne's allegation that he receives less than three hours of exercise per week certainly "does not give meaningful protection to this basic human necessity." Pierce, 526 F.3d at 1212. Jayne therefore states a claim under the Eight and Fourteenth Amendments for denial of adequate exercise. Because he fails to allege specific conduct by any defendant and injunctive relief is no longer available, however, the Court will dismiss the claim without prejudice but with leave to amend to name a responsible defendant or defendants. See Leer, 844 F.2d at 633. Jayne may, within forty-five (45) days, submit an amended complaint on the form provided with this Order. He must clearly designate on the face of the document that it is the "First Amended Complaint." The amended complaint must be retyped or rewritten in its entirety on the form provided with this Order and may not incorporate any part of the original Complaint by reference. An amended complaint entirely supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat an original complaint as nonexistent. Id. Any cause of action that was raised in the original complaint is waived if not raised in a first amended complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
vi. Isolation
"Confinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under Eighth Amendment standards." Hutto, 437 U.S. at 685. At the same time, "punitive isolation is not necessarily unconstitutional, but it may be, depending on the duration of the confinement and the conditions thereof." Id. at 685-86 (internal quotation marks and citation omitted).
In his complaint, Jayne alleges that he has been placed in a "safety isolation cell . . . on numerous occasions for up to 12 hours." (Dkt. #1 at 3). Jayne does not allege, however, that he was kept in an isolation cell for prolonged periods of time or that particular conditions of the cell(s) he was kept in subjected him to harm exceeding the inherent discomforts of confinement. Moreover, Jayne fails to allege specific conduct by any defendant that resulted in his isolation. Therefore, Jayne fails to state a claim under the Eighth and Fourteenth Amendments with respect to his intermittent confinement in a "safety isolation cell."
vii. Sensory Deprivation and Natural Sunlight
"Sensory deprivation or excessive limitation of activity may constitute an Eighth Amendment violation." Baumann v. Ariz. Dept. of Corr., 754 F.2d 841, 846 (9th Cir. 1985) (citation omitted). Here, Jayne's only allegation in support of his claim that he has been subjected to "sensory deprivation" is that Bosenko and Van Buskirk ordered that Jayne's jail windows be covered, preventing natural sunlight from entering his cell. (Dkt. #1 at 7). Jayne does not allege the complete denial of light or any other aspect of sensory deprivation that would exceed the inherent discomforts of confinement. Thus, Jayne fails to state a claim under the Eighth and Fourteenth Amendments for "sensory deprivation."
viii. Fees for Medical Care
Charging prisoners for medical services does not constitute deliberate indifference unless the fees charged are prohibitively high. Shapley v. Nev. Bd. of State Prison Comm'rs., 766 F.2d 404, 408 (9th Cir. 1985) (per curiam). In his complaint, Jayne alleges that Bosenko and "Barbara" required that he pay for an eye exam and for glasses. (Dkt. #1 at 8). Jayne does not allege that this charge prevented him from pursuing medical care, nor does he allege that the fees negatively impacted his medical care. Thus, Jayne fails to state a claim against Bosenko or "Barbara" under the Eighth and Fourteenth Amendments for inadequate medical care.
F. Other Restrictions
i. Excessive Force
"[T]he Fourth Amendment sets the `applicable constitutional limitations' for considering claims of excessive force during pretrial detention." Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002) (quoting Pierce v. Multnomah County, 76 F.3d 1032, 1043 (9th Cir. 1996)). "[D]etermining whether a defendant officer's use of force was `reasonable' under the Fourth Amendment `requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake.'" Gibson, 290 F.3d at 1197 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment." Graham, 490 U.S. at 396 (internal quotations marks and citations omitted)
Jayne alleges that Church and Rogers "physically assaulted [him] by pushing him," causing Jayne continuing physical pain. (Dkt. #1 at 9). Jayne, however, does not allege any facts concerning the circumstances surrounding this incident. Nor does Jayne allege that this alleged use of force was unreasonable. Accordingly, Jayne fails to state a claim against Church or Rogers under the Fourth Amendment for excessive use of force.
ii. Visitation
Pre-trial detainees do not have a right to unfettered visitation. See Block v. Rutherford, 468 U.S. 576, 585-89 (1984) (upholding a blanket prohibition on contact visitation for pre-trial detainees as reasonably related to a legitimate government interest in security). "[T]here is no constitutional right of `access to a particular visitor.'" Keenan, 83 F.3d at 1092 (quoting Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460-61 (1989)).
In his complaint, Jayne alleges that Ashman "has forced [him] to have no visitation with his family." (Dkt. #1 at 3). Jayne does not allege that he has been denied visitation altogether, or that this restriction was accompanied by an express intent to punish. Thus, Jayne fails to state a claim against Ashman under the Fourteenth Amendment for a restriction on visitation.
iii. Collect Call Rates
"Prisoners have a First Amendment right to telephone access, subject to reasonable security limitations." Keenan, 83 F.3d at 1092 (citing Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986)). They do not, however, have a right to a specific rate for their telephone calls. See Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000) (per curiam).
Here, Jayne alleges that Bosenko and Global Tel Link engaged in "price gouging" on his collect calls. (Dkt #1 at 6). He does not, however, allege that this resulted in prices so high that he has been denied telephone access. Thus, Jayne fails to state a claim against Bosenko and Global Tel Link under the First Amendment for denial of telephone access.
iv. Deprivation of Property
"An unauthorized intentional deprivation of property does not give rise to a violation of the Due Process Clause if the state provides an adequate postdeprivation remedy." Hudson v. Palmer, 468 U.S. 517, 533 n. 14 (1983). Here, Jayne alleges that Zufall stole his personal property from his cell. (Dkt. #1 at 5). As in Hudson, the state provides an adequate postdeprivation remedy in the form of common-law causes of action that can provide compensation for his property loss. See Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) ("California law provides an adequate post-deprivation remedy for any property deprivations.") (citing Cal. Gov't Code §§ 810- 895). Additionally, Jayne indicates that the jail had a grievance procedure, and he does not allege any deficiency in this remedy. ( Id., p. 2). Nor does Jayne allege that Zufall acted "pursuant to some established procedure." Zimmerman v. City of Oakland, 255 F.3d 734, 738 (9th Cir. 2001). Thus, Jayne fails to state a claim under the Fourteenth Amendment for deprivation of personal property.
v. Legal Call Monitoring
Jayne alleges that Abney, Anderson, Ashman, Bosenko, Champagne, Gonzalez, Heyde, Joiner, Meek, Mitchell, Penland, and Van Buskirk recorded and monitored his calls to his attorney. (Dkt. #1 at 5). The Fourth Amendment is not triggered unless the state intrudes into an area "in which there is a `constitutionally protected reasonable expectation of privacy.'" United States v. Van Poyck, 77 F.3d 285, 290 (9th Cir. 1996) (quoting New York v. Class, 475 U.S. 106, 112 (1986)). Prisoners generally have "no expectation of privacy in [telephone] calls." U.S. v. Monghur, 576 F.3d 1008, 1011 (9th Cir. 2009) (citing Van Poyck, 77 F.3d at 291 ("[A]ny expectation of privacy in outbound calls from prison is not objectively reasonable and . . . the Fourth Amendment is therefore not triggered by the routine taping of such calls.")); U.S. v. Faulkner, 439 F.3d 1221 (10th Cir. 2006) ("It is generally accepted that a prisoner who places a call from an institutional phone with knowledge that the call is subject to being recorded has impliedly consented to the recording.") (citations omitted).
A prisoner may, however, have an expectation of privacy in a properly made call to his attorney. See Van Poyck, 77 F.3d at 291 n. 9 (stating that the court's analysis "does not apply to `properly placed' telephone calls between a defendant and his attorney"). In addition, the recording of Jayne's calls to his attorney may violate the Federal Wiretap Act, 18 U.S.C. §§ 2510-22. See id., 77 F.3d at 291. Accordingly, Jayne's allegations are sufficient at this time to state a claim against the above defendants for the monitoring and recording of his calls.
G. Access to Courts
To state a denial of access to the courts claim, a prisoner "must identify a `nonfrivolous,' `arguable' underlying claim" that the prisoner has been or will be unable to pursue properly because the defendant's actions have denied the prisoner meaningful access to the courts. Christopher v. Harbury, 536 U.S. 403, 415 (2002) (quoting Lewis v. Casey, 518 U.S. 343, 353 n. 3 (1996)). Here, Jayne alleges facts sufficient to state a claim for a violation of his constitutional rights with regard to restrictions placed on his calls to his attorney and his retaliatory transfer. He fails to state a claim, however, with regard to inspection of his legal mail, fees for legal supplies, and the monitoring and recording of his calls.
i. Restricted Telephone Access
Jayne alleges that Ashman and Van Buskirk denied him telephonic access to his attorney, except during "his 30 minute time out every other day which normally is at night." (Dkt. #1 at 4). The Ninth Circuit has "recognized detainees' and prisoners' first amendment right to telephone access. . . . subject to rational limitations in the face of legitimate security interests fo the penal institution." Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986) (quotation marks and citation omitted); see also Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (indicating that a prisoner may be deprived of access to the courts because he was denied telephone access to his attorney). In addition, "a prisoner's right of access to the courts includes contact visitation with his counsel." Ching v. Lewis, 895 F.2d 608, 610 (9th Cir. 1990) (emphasis added). Viewed in the light most favorable to him, Jayne alleges that Ashman and Van Buskirk have largely denied him access to his attorney, telephonic or otherwise. That allegation is sufficient to state a claim against Ashman and Van Buskirk under the First Amendment for denial of access to the courts.
ii. Legal Mail Inspection
Jayne alleges that Ashman read through and delayed the delivery of his outgoing mail "to the courts. . . . to [] public officials and individual judges. . . ." (Dkt. #1 at 5).
"The Supreme Court ha[s] held that [legal] mail may be opened in the presence of the addressee and that prison officials [can] require both that the letters be specially marked with the name and address of the attorney and that the attorney communicate first with prison officials." Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir. 1981) (citing Wolff v. McDonnell, 418 U.S. 539, 575-77 (1974)). "It is an open question in the Ninth Circuit whether reading legal mail outside of the prisoner's presence is clearly established law." Sherman, 656 F.2d at 528 (emphasis added); but see Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989) (holding that an isolated instance or occasional opening of legal mail outside of an inmate's presence does not rise to the level of a constitutional violation). In any event, "[m]ail from the courts, as contrasted to mail from a prisoner's lawyer, is not legal mail." Keenan, 83 F.3d at 1094 (citation omitted). Jayne does not allege that Ashman opened any mail from his attorney outside of his presence. Nor does he allege any actual injury related to any delays in the delivery of his mail to the courts. See id. ("[T]o state an access to the courts claim that concerns neither the inadequacies of the law library nor the lack of assistance of a person trained in law, an inmate must demonstrate `actual injury,' i.e., `some specific instance in which an inmate was actually denied access to the courts.'") (quoting Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989)). Accordingly, Jayne fails to state a claim against Ashman for denial of access to the court relating to either the opening of his mail or any delay in the delivery of his mail.
iii. Fees for Legal Supplies
Jayne alleges that Ashman and Bosenko have implemented "draconian policies" by charging Plaintiff for legal supplies. (Dkt. #1 at 9). He does not, however, allege an actual injury related to the fees charged for legal supplies, as he does not allege that they denied him access to the courts. Keenan, 83 F.3d at 1094. Therefore, Jayne fails to state a claim against Ashman and Bosenko for denial of access to the courts relating to legal supplies.
iv. Retaliatory Transfer
Prisoners may not be transferred in retaliation for exercising their First Amendment rights. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Here, Jayne alleges that Abney, Anderson, Ashman, and Van Buskirk (1) "maliciously transferr[ed] him to [the] High Desert State Prison for almost 2 months," (2) because Jayne (3) had attempted to exercise his First Amendment right to contact visitation and telephonic access to his counsel, and that (4) the transfer resulted in "no access to his counsel." (Dkt. #1 at 6). There is no indication, as yet, whether the transfer reasonably advanced a legitimate correctional goal. All told, Jayne's allegations are sufficient to state a First Amendment retaliation claim against Abney, Anderson, Ashman, and Van Buskirk.
VI. Relief Requested
When an inmate seeks injunctive or declaratory relief concerning conditions at a particular prison where he is housed, his claims for such relief become moot when he is no longer subjected to those conditions. Nelson v. Heiss, 277 F.3d 891, 897 (9th Cir. 2001). Jayne is no longer housed at the Shasta County Jail. (Dkt. #s 15, 17). Thus, Jayne's requests for injunctive relief are denied as moot. This action shall proceed as one for monetary damages only.
VII. Warnings
A. Address Changes
Jayne must file and serve a notice of a change of address in accordance with Rule 83-182(f) and 83-183(b) of the Local Rules of Civil Procedure. Jayne must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
B. Copies
Jayne must submit an additional copy of every filing for use by the Court. See LRCiv 5-133(d)(2). Failure to comply may result in the filing being stricken without further notice to Jayne.
C. Possible Dismissal
If Jayne fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).
Accordingly,
IT IS HEREBY ORDERED THAT:
(1) Plaintiff's Application to Proceed In Forma Pauperis is granted pursuant to 28 U.S.C. § 1915(a)(1).
(2) Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action pursuant to 28 U.S.C. § 1915(b)(1). All fees must be collected and paid in accordance with this Court's order to the California Department of Corrections, which will be filed concurrently with this Order.
(3) Plaintiff's Motion for Preliminary Injunction (Dkt. #8) is denied as moot.
(4) Plaintiff's Emergency Motion for Preliminary Injunction (Dkt. #12) is denied as moot.
(5) Plaintiff's Motion to Appoint Counsel and Motion for 90-Day Extension (Dkt. #18) is denied without prejudice.
(5) Plaintiff's isolation, confinement, outdoor exercise, sensory deprivation, medical fees, excessive force, visitation, collect call rate, deprivation of property, legal mail inspection, legal supply fees, and legal call monitoring claims are dismissed without prejudice. Defendants Abernathy, Baker, Craig, Global Tel Link, Marlar, Miller, Millis, and Viser are also dismissed without prejudice.
(6) Defendant Bosenko shall answer Plaintiff's claims regarding medical indifference, inadequate lighting, inadequate clothing, and the recording and monitoring of Plaintiff's telephone calls to his attorney. Defendant Ashman shall answer Plaintiff's claims regarding inadequate food, inadequate clothing, denial of access to counsel, retaliatory transfer claims, and the recording and monitoring of his telephone calls to his attorney. Defendant Van Buskirk shall answer Plaintiff's claims regarding inadequate clothing, denial of access to counsel, retaliatory transfer claims, and the recording and monitoring of Plaintiff's calls to his attorney. Defendants Barnes and Johnson shall answer Plaintiff's medical indifference claim. Defendants Abney and Anderson shall answer Plaintiff's claims regarding retaliatory transfer and the recording and monitoring of Plaintiff's calls to his attorney. Defendants Champagne, Gonzalez, Heyde, Joiner, Meek, Mitchell, and Penland shall answer Plaintiff's claims regarding the recording and monitoring of Plaintiff's calls to his attorney.
(7) Plaintiff is granted leave to amend his complaint to state claim for denial of adequate exercise against a particular defendant or defendants. Within forty-five (45) days of the date of this Order, Plaintiff may submit an amended complaint on the form provided with this Order. Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint." The amended complaint must be retyped or rewritten in its entirety on the form provided with this Order and may not incorporate any part of the original Complaint by reference. An amended complaint entirely supersedes the original complaint.
(8) The Clerk of the Court shall send Plaintiff a Prisoner Complaint form along with this order.
(8) The Clerk of the Court shall send Plaintiff a service packet including the Complaint (Dkt. #1), this Order, a Notice of Submission of Documents form, an instruction sheet, and copies of summons and USM-285 forms for each Defendant listed above in number 2.
(9) Within 30 days of the date of filing of this Order, Plaintiff shall complete and return to the Clerk of the Court the Notice of Submission of Documents. Plaintiff shall submit with the Notice of Submission of Documents: a copy of the Complaint, a copy of this Order, a completed summons, and a completed USM-285 for each Defendant listed above in number 2.
(10) Plaintiff shall not attempt service on Defendants and must not request waiver of service. Once the Clerk of the Court has received the Notice of Submission of Documents and the required documents, the Court will direct the United States Marshal to seek waiver of service from each Defendant or serve each Defendant.
(11) If Plaintiff fails to return the Notice of Submission of Documents and the required documents within 30 days of the date of filing of this Order, the Clerk of the Court shall, without further notice, enter a judgment of dismissal of this action without prejudice. See Fed.R.Civ.P. 41(b).