Opinion
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND ORDER DENYING WITHOUT PREJUDICE APPOINTMENT OF COUNSEL (ECF No. 1)
MICHAEL J. SENG, Magistrate Judge.
SCREENING ORDER
I. PROCEDURAL HISTORY
Plaintiff Michael B. Williams proceeds pro se and in form pauperis in this civil rights action filed April 18, 2013 pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff is civilly committed to Coalinga State Hospital. The Complaint is now before the Court for screening.
II. SCREENING REQUIREMENT
The in forma pauperis statutes provide that "the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, " Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusion are not. Iqbal, 129 S.Ct. at 1949.
Under § 1983, a plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
III. FACTS
Plaintiff has named Marissa Bigot, a Psychiatric Technician, and Daniel Wagoner, Hospital Patient Rights Advocate, as Defendants in this action. Plaintiff alleges as follows:
Plaintiff requests judicial notice of "exhibits A and B", however no such exhibits are identified in or included with the Complaint.
See, ( Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), Accord, ( Ashker v. Calif. Dept. of Corrections, 112 F.3d 392 (9th Cir. 1997).)
A. Claims Against Defendant Bigot
Plaintiff asserts Defendant Bigot has a practice of opening, reading, storing, seizing, or destroying his incoming and outgoing confidential, legal and non-legal mail outside Plaintiff's presence; retaliating against him for exercising his First Amendment right to file related grievances, preventing his free speech; and interfering with his right to access the court in Williams v. Philllps, pending with the Ninth Circuit Court of Appeals.
Case No. 12-15956 (9th Cir. 2012).
Plaintiff also assert that, as a result of preparing this lawsuit, on March 27, 2013, he received 8-pieces of his previously withheld state and federal court mail but alleges that this act by defendant does not undermine plaintiffs suit, (Bins v. Diaz, F.3d (9th Cir. Mar. 22, 2013).)
B. Claims Against Defendant Wagoner
Plaintiff asserts Defendant Wagoner denied him due process in grievance proceedings by concealing and failing to consider exculpatory evidence favorable to Plaintiff, denying due process and violating his rights under Brady v. Maryland, 373, U.S. 83 (1963).
C. Relief Sought
Plaintiff seeks an order enjoining Defendants (1) from censoring and delaying his mail, (2) to establish an office of Patients' Rights Advocate at Coalinga State Hospital, (3) from retaliating against him.
Plaintiff also seeks a declaration that his Brady rights were clearly established at times relevant; appointment of counsel; and damages and costs.
Plaintiff may also seek a declaration Defendants are not entitled to qualified immunity. Any such request is disregarded as premature. Defendants have not appeared and no affirmative defense of qualified immunity is in issue. See Siegert v. Gilley, 500 U.S. 226, 231 (1991).
IV. ANALYSIS
The Fourteenth Amendment provides the standard for evaluating the constitutionally protected interests of individuals who have been involuntarily committed to a state facility. Rivera v. Rogers, 224 Fed.Appx. 148, 150-51 (3d Cir. 2007); see Youngberg v. Romeo, 457 U.S. 307, 312 (1982). In determining whether the constitutional rights of an involuntarily committed individual have been violated, the court must balance the individual's liberty interests against the relevant state interests with deference shown to the judgment exercised by qualified professionals. Id. at 321-22. Plaintiff's First Amendment claim is rightly analyzed under prisoner rights case law. See Rivera at 150 ("Given that Rivera has been convicted of a crime and is being detained in the Special Treatment Unit because of his classification as a sexually violent predator under New Jersey's Sexually Violent Predator Act, his status is similar to that of a prisoner and we agree with the District Court's decision to proceed with its analysis of his First Amendment claim by looking to case law interpreting a prisoner's rights.").
A. Mail Claims
1. Legal Standards
"[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). "[T]he constitutional rights that prisoners possess are more limited in scope than the constitutional rights held by individuals in society at large. In the First Amendment context... some rights are simply inconsistent with the status of a prison or with the legitimate penological objectives of the corrections system.'" Shaw v. Murphy, 532 U.S. 223, 229 (2001), quoting Pell, 417 U.S. at 822.
While prisoners and those involuntarily committed have a First Amendment right to send and receive mail, Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995); Jones v. Brown, 461 F.3d 353, 358 (3d Cir. 2006), the right to receive mail is subject to substantial limitation and a regulation or policy infringing on the right will be upheld if it is reasonably related to legitimate penological interests. Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005), citing Turner v. Safley, 482 U.S. 78, 89 (1987).
2. Mail Claims Fail
Plaintiff does not explain the nature and extent of interference with his mail. He does not explain what reason prison officials gave for the interference. It is unclear whether the alleged interference conforms with facility practice and prison regulations. Plaintiff also fails to describe his various grievances concerning the handling of his mail, such as: what actions were complained of; what transpired during and resulted from the grievance proceedings; whether he appealed the results and, if so, what happened on appeal.
The mere fact that prison officials open and conduct a visual inspection of a prisoner's legal and non-legal correspondence does not alone state a claim for violation of a prisoner's constitutional rights. Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974); Mitchell v. Dupnick, 75 F.3d 517, 523 (9th Cir. 1996); see also Rivera, 224 Fed.Appx. at 151 (a policy that allows staff to open packages not marked as "legal mail" to check for contraband does not violate the First Amendment); Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996) (legal mail may be inspected per established institution procedures; Royse v. Superior Court), 779 F.2d 573 (9th Cir. 1986) (legal mail may be inspected for contraband); Samonte v. Maglinti, 2007 WL 1963697, at *5 (D. Hawai'i July 3, 2007) (whether legal mail may be opened outside the inmate's presence is an open question in the Ninth Circuit).
It is unclear whether Plaintiff alleges his outgoing mail is being censored. Censorship of outgoing prisoner mail is justified if the following criteria are met: (1) the regulation furthers an important or substantial government interest unrelated to the suppression of expression, and (2) the limitation on First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Procunier v. Martinez, 416 U.S. 396, 413 (1974), overturned in part by Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989). The facts alleged are insufficient to determine whether Plaintiff can state such a claim.
Finally, Plaintiff appears to characterize mail to a county office of vital statistics as legal mail. A prison need not treat all mail sent to government agencies and officials as legal mail. See O'Keefe v. Van Boening, 82 F.3d 322, 326 (9th Cir. 1996). Plaintiff must allege facts sufficient for the Court to determine a basis for finding the mail at issue to be legal mail.
Accordingly, Plaintiff fails to allege facts sufficient to suggest Defendant Bigot violated his First Amendment right to send and receive mail. If Plaintiff chooses to amend, he must explain in reasonable detail how Defendant Bigot violated his First Amendment rights. Iqbal, 556 U.S. at 678.
B. Access to Courts Claims
1. Legal Standards
Plaintiff has a constitutional right of access to the courts and prison officials may not actively interfere with his right to litigae. Silva v. Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011) Prisoners also enjoy some degree of First Amendment rights in their legal correspondence. Bounds v. Smith, 430 U.S. 817, 824-25 (1977). However, to state a viable claim for relief, Plaintiff must allege he suffered an actual injury, which is prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or present a non-frivolous claim. Lewis v. Casey, 518 U.S. 343, 349 (1996). Delays in providing legal materials or assistance which result in prejudice are "not of constitutional significance" if the delay is reasonably related to legitimate penological purposes. Id. at 362.
2. Access to Courts Claim Fails
Plaintiff has not alleged any facts to suggest he has actually suffered an injury or loss as a result of alleged interference with his access to court. He claims only that Defendant Bigot was "deliberately indifferen[t]... with Plaintiff's confidential correspondences to the Court Clerk in [his] Williams action."
Plaintiff must show "actual prejudice to contemplated or existing litigation." Nevada Dep't of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011), citing Lewis, 518 U.S. at 348. The absence of an injury precludes an access claim, and Plaintiff's Complaint is devoid of any facts suggesting any injury occurred. Christopher v. Harbury, 536 U.S. 403, 415-16 (2002); Jones, 393 F.3d at 936; see Merryfield v. Jordan, 431 Fed.Appx. 743, 747 (10th Cir. 2011) (when access to courts is impeded by mere negligence, as when legal mail is inadvertently lost or misdirected, no constitutional violation occurs); Mitchell v. Carlson, 404 F.Supp.1220, 1225 (D.C. Kan. 1975) (delay in delivery of inmate mail is not a denial of access to courts so long as the delay is neither material nor prejudicial).
If Plaintiff chooses to amend, he must explain in reasonable detail how Defendant Bigot violated his First Amendment rights. Iqbal, 556 U.S. at 678.
C. Retaliation
1. Legal Standards
Allegations of retaliation against a prisoner's First Amendment rights to speech and to petition the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "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 inmate'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); accord Watson v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009).
In order to state a claim, Plaintiff must allege specific facts demonstrating that a Defendant took an adverse act because of Plaintiff's First Amendment activity. Plaintiff's protected conduct must have been a "substantial' or motivating' factor behind the defendant's conduct." Brodheim, 584 F.3d at 1271, quoting Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). The adverse action must not have reasonably advanced a legitimate correctional goal.
2. Retaliation Claim Fails
Plaintiff does not allege facts suggesting Defendant Bigot was aware of the grievances filed against her and that she acted in retaliation for the filing of those grievances. It also is unclear whether or not Defendant Bigot's actions advanced a legitimate penological purpose.
Accordingly, Plaintiff's retaliation claim against Defendant Bigot fails. If Plaintiff chooses to amend, he must allege specific facts suggesting Defendant Bigot took an adverse act because of Plaintiff's First Amendment activity. Plaintiff's protected conduct must have been a "substantial' or motivating' factor behind the defendant's conduct." Brodheim, 584 F.3d at 1271, quoting Soranno's Gasco, Inc., 874 F.2d at 1314. The adverse action must not have reasonably advanced a legitimate correctional goal.
D. Due Process
1. Legal Standard
Civil detainees are entitled to Fourteenth Amendment protections. Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004) ("Civil status means civil status, with all the Fourteenth Amendment rights that accompany it.").
Plaintiff's due process claim is properly analyzed under the Fourteenth Amendment. The Fifth Amendment is not applicable in this context as its "due process clause only applies to the federal government." Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008).
2. Due Process Claim re Grievance Process Fails
There is no federal constitutional right to an institutional grievance procedure or injunctive relief thereon. Merryfield, 431 Fed.Appx. 743, at *6. Plaintiff may not claim a federal violation arising from the grievance process at his facility because there is no federal right to a grievance procedure. Id.
Even if Plaintiff had such a right, he fails to allege facts showing denial of the grievance process due him. Rather he complains of the outcome of the process. Plaintiff has no right to a certain outcome. See Wise v. Washington State Department of Corrections, 244 Fed.Appx. 106, 108 (9th Cir. 2007), ("An inmate has no due process rights regarding the proper handling of grievances.").
Plaintiff does not and can not state a due process claim arising from the grievance process. Amendment would be futile.
3. Due Process Claim re Disruption of Mail Fails
Plaintiff may claim Defendant Bigot's alleged mail disruption is a Fourteenth Amendment violation. However, as stated above the allegations are not sufficient for the Court to determine whether Defendant Bigot's actions served legitimate, non-punitive, governmental interests. Batten v. Shasta County Bd. of Supervisors, 489 Fed.Appx. 174 (9th Cir. 2012); see Jones, 393 F.3d at 932 (analyzing conditions of confinement for civil detainees under the Fourteenth Amendment and stating that civil detainees may be subject to "[l]egitimate, non-punitive government interests" such as "maintaining jail security, and effective management of [the] detention facility.").
Unless there is evidence of intent to punish, conditions or restrictions that are reasonably related to legitimate penological objectives do not violate pretrial detainees' right to be free from punishment. See Block v. Rutherford, 468 U.S. 576, 584 (1984), citing Bell v. Wolfish, 441 U.S. 520, 538-39 (1979).
Accordingly, Plaintiff fails to state a due process claim arising from disruption of his mail. If Plaintiff chooses to amend, he must explain in reasonable detail how Defendant Bigot violated his Fourteenth Amendment rights. Iqbal, 556 U.S. at 678.
E. Brady Claim
Brady v. Maryland, 373 U.S. 83 (1963) announced a constitutional requirement proscribing pretrial withholding of evidence "favorable to an accused" and "material to [his] guilt or to punishment" by the prosecution. Brady, 373 U.S. at 1196-97; Skinner v. Switzer, 131 S.Ct. 1289, 1299 (2011), citing Cone v. Bell, 556 U.S. 449, 469 (2009). To establish that a Brady violation undermines a conviction, a convicted defendant must make each of three showings: (1) the evidence at issue is "favorable to the accused, either because it is exculpatory, or because it is impeaching"; (2) the State suppressed the evidence, "either willfully or inadvertently"; and (3) "prejudice... ensued." Strickler v. Greene, 527 U.S. 263, 281-282 (1999); see Banks v. Dretke, 540 U.S. 668, 691 (2004).
A successful Brady claim necessarily yields evidence undermining a conviction: Brady claims therefore rank within the traditional core of habeas corpus and outside the province of § 1983.
Plaintiff's conviction is not at issue in this action. A Brady violation leading to such a conviction may not be advanced by a § 1983 action.
Accordingly. Plaintiff does not and can not state a Brady claim. Amendment would be futile and is denied.
F. Injunctive Relief
1. Legal Standard
To prevail, the party seeking injunctive relief must show either "(1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in [the moving party's] favor." Oakland Tribune, Inc. v. Chronicle Publishing Company, Inc., 762 F.2d 1374, 1376 (9th Cir. 1985), quoting Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 523 (9th Cir. 1984); see City of Los Angeles v. Lyons, 461 U.S. 95, 101-102 (1983) (plaintiff must show "real and immediate" threat of injury).
2. Injunctive Relief Claim Fails
Plaintiff has not demonstrated that he will succeed on the merits of his case. His Complaint fails to state any cognizable claim.
Plaintiff also fails to suggests a real and immediate threat of injury. See City of Los Angeles, 461 U.S. at 101-102 (plaintiff must show "real and immediate" threat of injury, and "past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief... if unaccompanied by any continuing, present, adverse effects."). The Court is unable to determine at this time how Plaintiff would suffer without the requested relief.
Accordingly, Plaintiff is not entitled to and in need of injunctive relief. If Plaintiff chooses to amend, he must set forth sufficient facts showing the above noted elements.
G. Appointment of Counsel Denied
1. Legal Standard
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), partially overruled on other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request the voluntary assistance of counsel pursuant to § 1915(e)(1). Rand, 113 F.3d at 1525.
A request for a court order, including an order appointing counsel, must be made by motion. Fed.R.Civ.P. 7(b).
2. Appointment of Counsel Denied Without Prejudice
Plaintiff's request is procedurally deficient because is it made in his pleading rather than by motion. Additionally, Plaintiff fails to alleges facts of exceptional circumstances supporting appointment of counsel. In determining whether "exceptional circumstances exist, the district court must evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his or her claims pro se in light of the complexity of the legal issues involved." Rand, 113 F.3d at 1525. No cognizable claim is stated. The facts alleged to date appear straightforward and unlikely to involve extensive investigation and discovery. The record in this case demonstrates sufficient writing ability and legal knowledge to articulate the claims asserted. Additionally, it is not apparent on the record that before bringing this motion Plaintiff exhausted diligent effort to secure counsel. Plaintiff's lack of funds alone does not demonstrate that efforts to secure counsel necessarily would be futile.
See, e.g. Thornton v. Schwarzenegger, 2011 WL 90320, *3-4 (S.D. Cal. 2011) (cases cited).
Accordingly, for the foregoing reasons, Plaintiff's request for appointment of counsel is denied without prejudice.
V. CONCLUSIONS AND ORDER
Plaintiff's request for appointment of counsel is procedurally and substantively deficient and denied without prejudice.
Plaintiff's Complaint does not state a claim for relief under § 1983. The Court will grant Plaintiff an opportunity to file an amended complaint consistent with the foregoing. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
If Plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth "sufficient factual matter... to state a claim that is plausible on its face.'" Id. at 1949, quoting Twombly, 550 U.S. at 555. Plaintiff must also demonstrate that each named Defendant personally participated in a deprivation of his rights. Jones, 297 F.3d at 934.
Plaintiff should note that although he has been given the opportunity to amend, it is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff should carefully read this Screening Order and focus his efforts on curing the deficiencies set forth above.
Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled "First Amended Complaint", refer to the appropriate case number, and be an original signed under penalty of perjury. Plaintiff's amended complaint should be brief. Fed.R.Civ.P. 8(a). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level...." Twombly, 550 U.S. at 555.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's request for appointment of counsel is DENIED WITHOUT PREJUDICE;
2. The Clerk's Office shall send Plaintiff (1) a blank civil rights amended complaint form and (2) a copy of his Complaint filed April 18, 2013;
3. Plaintiff's Complaint is DISMISSED for failure to state a claim upon which relief may be granted;
4. Plaintiff shall file an amended complaint within thirty (30) days from service of this Order; and
5. If Plaintiff fails to file an amended complaint in compliance with this Order, it is recommended that this action be dismissed, with prejudice, for failure to state a claim and failure to prosecute.
IT IS SO ORDERED.
COMPLAINT FOR FIRST AMENDMENT AND DUE PROCESS VIOLATIONS PURSUANT TO THE FEDERAL CIVIL RIGHTS ACT OF 1871, UNDER 42 U.S.C. SECTION 1983.
DEMAND FOR TRIAL BY JURY
A.
PRELIMINARY INTRODUCTION
1. Plaintiff Michael B. Williams, an unconvicted-uncommitted involuntary civil detainee confined at Coalinga State Hospital proceeding pro se, and in forma pauperis, brings this Action under 42 U.S.C. Section 1983, pursuant to the Federal Civil Right's Act of 1871, against Defendant Marissa Bigot, a Psychiatric Technician hospital care provider claiming violations of plaintiffs First, Fifth and Fourteenth Amendment right's arising out of Defendant Bigot's continued course of action since October 6, 2012, to the present of seizing, opening and reading both his outgoing and incoming legal and personal hospital mail in retaliation against him for complaining previously on November 9, 2012, and again on November 22, 2012, regarding the deliberate interference by Defendant with Plaintiffs confidential correspondences to the Court Clerk in a pending federal litigation before the United States Court of Appeals for the Ninth Circuit in San Francisco, under the heading of, (Williams v. Phillips, et al., Case No. 12-15956 (9th Cir. 2012).)
2. Plaintiff also alleges Due Process violations under the Fifth and Fourteenth Amendments against Defendant Daniel Wagoner, a hospital Patient's Rights Advocate when exculpatory evidence that was concealed by his hospital advocacy office that could have been potentially helpful to him when plaintiff filed his November 9, 2012, and November 22, 2012, hospital administrative grievances, violated his rights under the landmark 1963 Supreme Court decision in, ( Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).)
B.
REQUEST TO PROCEED PRO SE, AND IN FORMA PAUPERIS, 28 U.S.C. SECTION 1654
3. Plaintiff alleges that the Complaint in this Action is being filed under the Federal Civil Rights Statute, 42 U.S.C. Section 1983, and it should be noted by the District Court that Title 42 U.S.C. Section 1997(c), does not apply where Plaintiff in this action appears to be civilly detained, and is not therefore a prisoner, within the meaning of the Prisoner's Litigation Reform Act, see ( Page v. Torrey, 201 F.3d 1136-40 (9th Cir. 2000), or pursuant to Title 18 U.S.C. Section 3626 (9)(3), see also ( Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005), ( Turay v. Seling, 108 F.Supp.2d 1148, 1151 (W.D. Wash. 2000).
4. Therefore, the Federal District Court, is respectfully asked to grant Plaintiff full in forma pauperis status in this action under Title 28 U.S.C. Section 1654, alleging Constitutional infringements of his First, Fifth and Fourteenth Amendment rights, and noting that the alleged inmate trust account procedures of Title 28 U.S.C. Section 1915 (h), do not apply to Plaintiff in this case, see e.g. ( West v. Macht, 986 F.Supp.2d 1141, 1143 (W.D. Wis. 1997), ( Souder v. Brennan, 367 F.Supp. 808 (D.C. DC 1973), but also see ( MLB v. SLJ, 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996).
5. Additionally, in ( Page, supra, 201 F.3d 1136, 1140 (9th Cir. 2000), the Court of Appeals for the Ninth Circuit has held that a detainee, such as Plaintiff, or who is civilly committed under California's Sexually Violent Predators Act after completing his, or her state prison term was not a "prisoner", and therefore did not have to exhaust their administrative remedies prior to filing suit in forma pauperis under Title 42 U.S.C. Section 1983, against state hospital personnel, (Id. at p-).)
C.
STATEMENT OF JURISDICTION AND VENUE
6. Jurisdiction is conferred on the United States District Court for the Eastern District of California under 29 U.S.C. Section 1343, providing for jurisdiction over federal claims arising under 42 U.S.C. Section 1983, of the Federal Civil Rights Act of 1871, and under 1985 and 28 U.S.C. Sections 2201, and 2202, relating to declaratory judgments.
D.
VENUE
7. Venue over Plaintiffs Federal Constitutional claims is proper in the Eastern District of California, Fresno Division, because the Plaintiff Michael B. Williams, resides in the City of Coalinga, in the County of Fresno, see Title 28 U.S.C. Section 1391 (b)(2).)
E.
THE PARTIES
8. Plaintiff Michael B. Williams, is a resident of the State of California, and resided within the jurisdiction of the State of California at all times herein alleged.
9. Defendant Marissa Bigot, a Unit 6 Coalinga State Hospital Psychiatric Technician and Unit Shift Supervisor, was a resident of the State of California at all times herein alleged. She is being sued in her personal and official capacity as being such a hospital psychiatric technician.
10. Defendant Daniel Wagoner, a Coalinga State Hospital Patient's Rights Advocate, was a resident of the State of California at all times herein alleged. He is being sued in his personal and official capacity as being such a hospital patient's rights advocate.1
F.
FIRST CAUSE OF ACTION
(Section 1983 Retaliation Claims)
11. Plaintiff realleges, and incorporates herein by reference the allegations of the preceding paragraphs from 1 through 10, inclusive, as though they were fully set forth herein.
1. First Amendment violation:
Argument (1)
12. Plaintiff principally claims the common core of operative facts show that, in retaliation for him originally bringing a hospital citizen complaint against Defendant bigot on October 6, 2012, and two additional hospital Patient's Rights Complaints, dated November 9, 2012, and November 22, 2012, respectively alleging that defendant inappropriately had tampered with the U.S. mail bag designated for Unit 6 of the hospital, in violation of his First Amendment right to bring hospital grievances. Plaintiffs retaliation claim also includes a separate retaliation sub-claim, that since October 6, 2012, to the present, Defendant Bigot had begun a daily regiment of seizing, opening and reading his outgoing, and incoming personal correspondences and legal mail outside of plaintiffs presence in a pending Federal Appeals Court litigation. He also assert that his intercepted personal, or legal mail by defendant is than either destroyed, or that she places these pieces of mail in a gray storage-bin on the hospital unit. Plaintiff argues that his legal mail was marked private, or confidential, and alleges that defendant could clearly tell that these correspondences was legal based upon the Court, or attorneys mailing addresses on the outside envelopes.
13. Last, Plaintiff next contends that in one of his intercepted privileged legal correspondences dated March 12, 2013, and addressed to the Riverside County Vital Records Office in Riverside, CA, concerning family personal documents relating to his deceased grandfather, the defendant on the evening of Wednesday, March 13, 2013, went so far as to use one of the hospital state computers to go on-line through the Internet searching for information about plaintiffs grandfather, and his estate without ever telling him that the seized confidential legal letter that he wrote was not mailed, or that his personal, or confidential incoming letters sent to him were not being delivered to plaintiff, also violated his First Amendment Rights of free speech, see ( Phelps v. U.S. Federal Government, 15 F.3d 735 (8th Cir. 1994).)
14. Pretrial detainees possess greater constitutional rights than prisoners, ( Stone v. City of San Francisco, 968 F.2d 850, 859 Fn. 10 (9th Cir. 1992), see also ( Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (Holding that a Civil Detainee awaiting civil commitment proceedings under California's SVP-Act is entitled to protections at least as great as those afforded to a civilly committed person, and at least as great as those afforded to a person accused, but not convicted of a crime). however, since confinement claims brought by detainees often raise similar issues, federal courts borrow jurisprudence from 42 U.S.C. Section 1983 prison condition cases when analyzing the rights of civil detainees, see ( Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002) (Holding that federal courts borrow from Eighth Amendment Jurisprudence when analyzing the rights of detainees even though a detainee's right to be free from punishment is actually grounded in the due process clause).
15. That said, Plaintiff alleges that he have a protected First Amendment right to file state hospital grievances, and to pursue civil rights litigation in the federal courts of California, ( Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005).)
16. Plaintiff further assert that, a Section 1983 Complaint that complies with the Federal Rules of Civil Procedure cannot be dismissed by the District Court on the ground that his allegations of retaliation are conclusionary, or that plaintiff had not alleged a chronology of events from which retaliation for exercising his First Amendment rights can be inferred, see ( Swierkiewicz v. Sorema, 534 U.S. 506, 513, 122 S.Ct. 992, 998-99, 152 L.Ed.2d (2002) (Held that there are no special pleading rules for prisoner civil rights cases), ( Leatherman v. Tarrant County Narcotics Intelligence, and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), ( Kyle v. Morton High School, 144 F.3d 448, 455 (7th Cir. 1998) (per curiam). The federal rules require (with irrelevant exceptions), only that the complaint state a claim, not that it plead the facts that if true would establish (Subject to any defenses) that the claim was valid, ( Nance v. Vieregge, 147 F.3d 589, 590-91 (7th Cir. 1998). All that need to be specified is the bare minimum of facts necessary to put the defendant on notice of the claim so that he, or she can file an answer, ( McLain v. Real Estate Bd. of New Orleans, 444 U.S. 232, 246 (1980), ( Beanstalk Group, Inc. v. AM General Corp., 283 F.3d 856, 863 (7th Cir. 2002), see also ( Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 9999).)
17. Accordingly where, as here, plaintiff has specified both in his suit, and the acts of retaliation, namely by presenting a viable claim for the denial of receiving his incoming hospital personal and legal mail, or defendant's attempted interference with plaintiffs right of court access to a federal appeals court in a pending appeal litigation, and he assert that this specification is enough to enable the defendant in this action to file an answer, ( Johnson v. Stovall, 233 F.3d. 486, 489 (7th Cir. 2000), ( Lewis v. Casey, 518 U.S. 343, 351, 116, S.Ct. 2174 (1996), but also see e.g. ( Hydrick v. Hunter, 466 F.3d 676 (9th Cir. 2006).)2
G.
SECOND CAUSE OF ACTION
(The Defendant Patient's Rights Advocate and the Brady Rule Claims)
18. Plaintiff realleges, and incorporates herein by reference the allegations of the preceding paragraphs from 11 through 17, inclusive, as though they were fully set forth herein.
2. Fifth and Fourteenth Amendments Violations:
Argument (2)
19. Providing hospital Patient's Rights Advocacy, and investigative services to involuntarily civilly detained patients at Coalinga State Hospital, Defendant Wagoner is a Patient's Rights Advocate responsible for collecting evidence that could help a patient to prove his allegations of abuse, or misconduct by hospital mental health providers, and staff employees. This includes, but is not limited to, of making sure that exculpatory evidence is shared with the patient is fundamental to a fair investigation into his hospital grievances.
20. At the heart of his claim, Plaintiff alleges that defendant patient's rights advocate's policy is in fact a hospital sham, and that his hospital advocacy office staff deliberately conceals evidence of mental health staff abuses, and federal civil rights violations from the patients complainants that could potentially be helpful to their hospital administrative grievances.
21. Plaintiff also argues that in response to his complaint dated November 9, 2012, regarding his mail being withheld by Defendant Bigot, Defendant Wagoner's findings of misconduct on the part of Defendant Bigot had failed to include an interview and exculpatory statements from a hospital police officer named by plaintiff in his October 6, 2012, Citizen's Complaint that would have reflected on the truthfulness of his hospital grievance against Defendant Bigot and therefore, because of such suppression of a witness statements favorable to plaintiff was itself sufficient to amount to a denial of his due process rights, see e.g. ( Pyle v. Kansas, 317 U.S. 213, 215-16, 63 S.Ct. 177, 178, 87 L.Ed. 214).)
H.
QUALIFIED IMMUNITY
22. The law of the case in the Ninth Circuit is that the defendants are not entitled to qualified immunity in involuntary detainee's 42 U.S.C. Section 1983 Federal Civil Rights Actions challenging the conditions of his, or her confinement as an alleged sexually violent predator, see ( Cerniglia v. County of Sacramento, 566 F.Supp.2d 1034 (E.D. Cal. 2008), see also ( Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004).)
23. Moreover, Plaintiffs Section 1983, Federal Civil Rights Complaint also assert that any dismissal in this action for his failure to state a claim pursuant to Federal Rules of Civil Procedure; Rule 12(b)(6), would be a ruling on a question of law. This Court must take as true ALL allegations of material fact as stated in the Complaint, and construe them in a light most favorable to plaintiff, the nonmoving party, see ( Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). As the Supreme Court has stated "The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence in support of the claims. Indeed, it may appear on the face of the pleadings that a recovery is very remote, and unlikely, but that is not the test, " ( Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), rather, "A Complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief, " ( Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).)
I.
SERVICE OF PROCESS
3. IN FORMA PAUPERIS ACTIONS.
24. Under Federal Rules of Civil Procedure, Rule 4(c)(2), the District Court is requested to direct the United States Marshal, or Clerk of the Court to effect service of process on behalf of plaintiff proceeding in forma pauperis, see also, 28 U.S.C. Section 1654.
J.
PRAYER FOR RELIEF
Where, Plaintiff prays:
1. That the Court enter a judgment declaring that Plaintiff is entitled to an order enjoining Defendants from any censorship, or delay of his outgoing-incoming mail in any respect as to the following categories of addresses:
a. Any elected public official and his, or her staff members including, but not limited to the United States District Courts, or Federal Appeals Court, the Governor of the State of California, State and Federal Legislators, and District Attorneys,
b. Any appointed public officials and his, or her staff members, including but not limited to State and Federal police agencies, and the Administrators of the State Department of Human Resources, or the state hospital,
c. Advocacy groups including, but not limited to the American Civil Liberties Union, the California Innocence Projects, or Rights Advocacy Center,
d. Attorneys licensed to practice law in any state of these United States, and
e. Newspapers, magazines and other periodicals.
f. That the Court declare that the particulars, and contours the alleged Constitutional Brady rights upon which the Plaintiff in this Action rely was clearly established federal law in which under, ( Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d, 215, 83 S.Ct. 1194 (1963), an inadvertent nondisclosure of exculpatory evidence has the same impact on the fairness of the proceedings as deliberate concealment, ( Strickler v. Greene, 527 U.S. 263, 144 L.Ed.2d 286, 119 S.Ct. 1936 (1999),
g. Requiring that establishment of an office of Patient's Rights Advocate at the Coalinga State Hospital facility, an appropriate and effective means to prevent defendant from future inadequate hospital patient rights investigations or which would prohibit defendant from suppressing exculpatory evidence favorable to patients grievances defense,
2. A preliminary and permanent injunction, enjoining and restraining defendants, or Coalinga State Hospital mental health officials from retaliating against plaintiff for filing such,
3. That the Court take judicial notice of exhibits "A" and "B, " pursuant to California Evidence Code Sections 453, and 459, see 28 U.S.C. Section 1367 for allegations arising from state law,
4. That the District Court appoint counsel to assist Plaintiff in prosecuting this action pursuant to, ( Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004),
5. Reasonable cost of suit and attorney fees, as authorized by federal law.
6. A judgment awarding Plaintiff general, and compensatory damages in the amounts to be determined or proven at trial, including but not limited to, punitive damages for violations of his federal civil rights, and,
7. For any, and all such other relief as the District Court may deem necessary, just, prudent and proper.