Opinion
CV 21- 01311-PHX-SRB (MHB)
05-06-2022
Joseph Renander, Plaintiff, v. Benjamin Griego, et al., Defendants.
REPORT AND RECOMMENDATION
HONORABLE MICHELLE H. BUMS, MAGISTRATE JUDGE
On May 14, 2021, Plaintiff Joseph Keith Renander, a Colorado prisoner who is confined in the CoreCivic Saguaro Correctional Center (SCC) in Eloy, Arizona, filed a pro se Complaint in Pinal County Superior Court alleging federal constitutional violations and state-law claims against multiple Defendants. (Doc. 1-3 at 2-55.) Specifically, Plaintiff named as Defendants: CoreCivic, a private entity that operates SCC, and the following former or current SCC employees: Warden Todd Thomas; Assistant Wardens Benjamin Griego and Jodi Bradley, mailroom supervisor Carla Robertson, Sergeants Gawlik and Nira, Unit Managers Sigmon and Olsen, counselor Aleman, case manager Mark Rieland, and unspecified number of John and Jane Does, who worked in the mailroom. (Doc. 10.)
In his twelve-count Complaint, Plaintiff alleged the following claims: retaliation (Counts 1-4); violation of due process for failing to notify of withheld or rejected mail and email (Count 5); denial of due process in disciplinary proceedings (Count 6); state law conversion (Count 7); negligence (Count 8); censorship in violation of the First Amendment (Counts 9 and 10); First Amendment violations of the attorney-client privilege and work product doctrine (Count 11); and interference with mail and email in violation of the First Amendment (Count 12). (Doc. 10.)
In a January 5, 2022 Screening Order, the Court ordered Defendants Griego, Robertson, Bradley, Gawlik, Sigmon, and Olsen to answer the portions of the Complaint asserting First or Fourteenth Amendment violations with respect to Plaintiff's claims for withholding or rejecting mail and email, or failing to provide notice of withholding or rejecting mail and email, and state law claims asserted against them. The Court dismissed Plaintiff's remaining claims and Defendants without prejudice. (Doc. 10.)
On January 31, 2022, after entry of a scheduling order, Plaintiff filed a motion for reconsideration of the dismissal of certain claims and Defendants in the Court's Screening Order. (Doc. 14.) Then, eight days later, he filed a motion for leave to amend complaint, wherein he attempts to resurrect several factual allegations, claims, and Defendants that were dismissed by the Court's Screening Order. (Doc. 15.)
To the extent Plaintiff also moves to enlarge the deadline for amending pleadings set forth in the Court's Scheduling Order, that request will be denied as moot. In its Scheduling Order the Court mistakenly put January 28, 2022 as the deadline for amending pleadings, when the actual deadline should have read March 28, 2022. Thus, Plaintiff's request for leave to amend is timely.
On February 14, 2022, the Court denied Plaintiff's motion for reconsideration finding, in part, that Plaintiff essentially asked the Court to rethink what it had already thought through, and Plaintiff had failed to demonstrate that the Court clearly erred or that its decision was manifestly unjust. (Doc. 16.) For the following reasons, the Court will also recommend that Plaintiff's motion for leave to amend complaint be denied.
Motions to amend pleadings to add claims or parties are governed by Federal Rule of Civil Procedure Rule 15(a), which provides, in part, “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). While the decision to grant or deny a motion to amend is within the discretion of the district court, “Rule 15(a) declares that leave to amend ‘shall be freely given when justice so requires'; this mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962); see Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir.1987) (“In exercising its discretion[,] ... ‘a court must be guided by the underlying purpose of Rule 15 -- to facilitate decision on the merits rather than on the pleadings or technicalities ... . Thus, ‘Rule 15's policy of favoring amendments to pleadings should be applied with extreme liberality.'”) (citations omitted).
The liberal policy in favor of amendments, however, is subject to some limitations. The United States Supreme Court has established that motions to amend should be granted, unless the district court determines that there has been a showing of: (1) undue delay, (2) bad faith, (3) prejudice to the opposing party, (4) futility of the amendment, or (5) previous amendment of the pleading. Foman, 371 U.S. at 182; see United States v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001).
Regarding futility, “[f]utility of amendment can, by itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). A proposed amendment is futile if it would not make out a plausible claim for relief. See Gordon v. City of Oakland, 627 F.3d 1092, 1095-96 (9th Cir. 2010); see also Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989) (“Leave to amend need not be given if a complaint, as amended, is subject to dismissal.”).
As noted above, in his motion to amend, Plaintiff attempts to resurrect several factual allegations, claims, and defendants that were dismissed by the Court's Screening Order.
Plaintiff first claims that he has added details to his proposed amended complaint “to clarify how he knows Robertson and Griego were responsible for the mail confiscations . which includes a written admission by both Defendants that they withheld this mail.” (Doc. 15 at 2; Doc. 15-1 at 5-6.) In its Screening Order, the Court dismissed Plaintiff's claim alleging that, in January and February 2019, Defendants Robertson and Griego confiscated Plaintiff's incoming mail including two large manila envelopes, finding that Plaintiff failed “to allege sufficient facts to support his assertion that Robertson and Griego were responsible for confiscating these envelopes . or when or how he learned of their alleged involvement.” (Doc. 10 at 24.) In his proposed amended pleading, Plaintiff now alleges that he “placed these envelopes in the facility's mailbox” but the “envelopes were never mailed.” (Doc. 15-1 at 5-6.) Plaintiff states “[i]n a returned request inquiring about this missing mail ... which both have signed off on, Griego acknowledges he and Robertson withheld this mail, saying that the material they arbitrarily deem ‘inappropriate' ‘cannot be sent in or out of the facility.'” (Doc. 15-1 at 5-6.)
As the Court noted in its Screening Order, although a prisoner retains some right to free expression in prison and to send and receive mail, Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam), such First Amendment rights must not be inconsistent with his status as a prisoner and with legitimate penological objectives of the corrections system. Shaw v. Murphy, 532 U.S. 223, 231 (2001); Clement v. Cal. Dep't of Corr., 364 F.3d 1148, 1151 (9th Cir. 2004). Therefore, in order to state a claim, Plaintiff must allege facts to support that his mail was withheld absent a legitimate penological purpose. Dennison v. Ryan, No. 12-15609, 522 Fed.Appx. 414, 418 (9th Cir. Apr. 9, 2013) (citing Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008)).
Here, Plaintiff provides no details regarding the contents of the mail that was allegedly withheld from which the Court could discern whether the mail was withheld without a legitimate penological purpose - except that the facility considered said contents “inappropriate” and not able to send in or out of the facility. Plaintiff's conclusory allegation that Defendant Robertson and Griego's withholding of his mail was “arbitrary” is insufficient to demonstrate that his mail was withheld without a legitimate penological interest. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, Plaintiff's additional factual allegations against Defendants Robertson and Griego as to the January and February 2019 mail confiscations fail to state a claim for relief.
Next, Plaintiff claims that he “clarified the details in count 8 as outlined by the court to describe the privileged material that was compromised, along with details on the legal work doctrine that was breached and additional details related to the Rieland/Aleman conduct on March 7 accidentally omitted from the original.” (Doc. 15 at 2.) In its Screening Order, the Court dismissed Plaintiff's claim for violation of the attorney-client privilege and the work product doctrine, reasoning that Plaintiff did “not allege that Defendants reviewed any communications that he had with his attorney,” and that Plaintiff failed to “identify these materials with sufficient specificity to demonstrate that they are subject to any protection as work product.” (Doc. 10 at 29.) In his proposed amended pleading, Plaintiff now claims that while waiting outside his cell during a cell search, he “observed through the cell door window that Rieland and Aleman were reading through [his] confidential legal correspondence with his attorney, which was clearly marked ‘legal/confidential.'” (Doc. 15-1 at 9.)
The attorney-client privilege applies to communications between an attorney and client concerning litigation or contemplated litigation, and the work product doctrine applies to an attorney's work, e.g., interviews, notes, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs. See Hickman v. Taylor, 329 U.S. 495, 511 (1947); ACLU v. U.S. Dep't of Justice, 880 F.3d 473, 483 (9th Cir. 2018) (quoting Fed.R.Civ.P. 26(b)(3)).
Once again, other than his conclusory statements claiming that Defendants read through “confidential legal correspondence with his attorney,” Plaintiff fails to identify these materials with sufficient specificity to demonstrate that they are subject to any protection as work product. Moreover, the record reflects that in this matter and Plaintiff's other recent filing, CV 19-4760-PHX-SRB (MHB), Plaintiff proceeded pro se, and he has failed to provide any facts to support his contention that the communication at issue was with his attorney - i.e., the date of the communication, the underlying matter number, and/or the name of any such attorney. Thus, Plaintiff's proposed amendments to his claims for violation of the attorney-client privilege and the work product doctrine against Rieland and Aleman fail to state a claim for relief.
Third, Plaintiff claims that he “tweaked the negligence claim to better outline the breach of duty committed by Thomas, and added a few other miscellaneous facts that seemed relevant to cure the deficiencies outlined by the court in its screening order.” (Doc. 15 at 2.) However, in its Screening Order, the Court dismissed Plaintiff's negligence claim against Thomas because there were no remaining federal claims against him, and thus, it declined to exercise supplemental jurisdiction over him. (Doc. 10 at 30.) Since there are no remaining federal claims against Thomas, and the Court has declined to extend supplemental jurisdiction over Plaintiff's state law claim against Thomas, any “tweak[]” to the negligence claim against Thomas is therefore futile.
Lastly, Plaintiff attempts to resurrect his retaliation claims, alleging that “[t]he various retaliations and punishments for writing described in this case have chilled and deterred Plaintiff's First Amendment activities. It has left Plaintiff nervous and paranoid, afraid to write out of fear that any staff members at any moment may arbitrarily object to something Plaintiff has written.” (Doc. 15-1 at 5.) He also claims that Defendants' actions have “forced Plaintiff to cease, delay, or alter his First Amendment protected speech, or try to hide his legitimate First Amendment activities from prison staff... .” (Doc. 15-1 at 5.) In its Screening Order, the Court dismissed Plaintiff's retaliation claims, reasoning that Plaintiff had “not adequately alleged that Defendants were retaliating against him or that their actions had a chilling effect or otherwise caused him more than minimal harm.” (Doc. 10 at 27.)
A viable claim of First Amendment retaliation contains 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 (or that the inmate suffered more than minimal harm) and (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claim requires an inmate to show (1) that the prison official acted in retaliation for the exercise of a constitutionally protected right, and (2) that the action “advanced no legitimate penological interest”). The plaintiff has the burden of demonstrating that his exercise of his First Amendment rights was a substantial or motivating factor behind the defendants' conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).
Initially, and as noted by Court in its Screening Order, Plaintiff has continued to exercise his First Amendment rights, communicating through mail and email over the entire span of this litigation, including the filing of the instant lawsuit. Moreover, in his proposed amended pleading, Plaintiff asserts “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” and, as such, fails to state a claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Accordingly, having determined that the amendments set forth in Plaintiff's motion for leave to amend and accompanying proposed amended complaint fail to state a claim for relief and are futile, the Court will recommend that Plaintiff s motion for leave to amend (Doc. 15) be denied.
IT IS THEREFORE RECOMMENDED that Plaintiff's motion for leave to amend (Doc. 15) be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.