United States District Court, D. Arizona
March 3, 2014
Cornelius Dozier, IV, Plaintiff,
Corrections Corporation of America, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
On October 21, 2013, Plaintiff Cornelius Dozier, IV, who is confined in the Florence Correctional Center (the "FCC"), a Corrections Corporation of America ("CCA") facility in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. On November 4, 2013, the Court denied the Application to Proceed because it was incomplete and gave Plaintiff 30 days to either pay the filing and administrative fees or file a complete Application to Proceed In Forma Pauperis. On December 2, 2013, Plaintiff filed a complete Application to Proceed In Forma Pauperis and an Amended Complaint. Thereafter, on December 18, 2013, Plaintiff filed a Second Amended Complaint. Because Plaintiff filed his Second Amended Complaint prior to screening, the Court treated it as the operative Complaint and treated the original Complaint (Doc. 1) and the Amended Complaint (Doc. 8) as nonexistent.
In a January 8, 2014 Order, the Court dismissed the Second Amended Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file a third amended complaint that cured the deficiencies identified in the Order.
On January 27, 2014, Plaintiff filed his Third Amended Complaint (Doc. 14). On February 20, 2014, Plaintiff filed a Request for an Order authorizing service by the United States Marshal in this case (Doc. 15). The Court will dismiss the Third Amended Complaint with leave to amend and deny the Request for an Order.
I. 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).
A pleading 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). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted).
"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (citation omitted). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679 (citation omitted). Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). Here, Plaintiff fails to state a claim upon which relief can be granted in his Third Amended Complaint, but it appears that the Third Amended Complaint could be cured by allegations of other facts. Accordingly, Plaintiff's Third Amended Complaint will be dismissed without prejudice and Plaintiff will be given an opportunity to amend.
II. Third Amended Complaint
In his Third Amended Complaint, Plaintiff alleges three counts against Defendants Corrections Corporation of America and Joseph Roemmich, lead investigator at the Florence Correctional Center. In Count One, Plaintiff alleges that his Fourteenth Amendment rights were violated. In Count Two, Plaintiff alleges that his Fifth Amendment rights were violated. In Count Three, Plaintiff alleges that his Sixth Amendment rights were violated.
Plaintiff's claims in Counts One through Three are all based on the following facts, as alleged by Plaintiff. On June 12, 2013, Plaintiff sent two letters to his parents, who live in North Carolina. In August, his parents told him that both letters had been opened. At the end of August, Plaintiff sent in a Prisoner Information Request inquiring as to whether he had been flagged as a security threat. On September 4, 2013, Defendant Roemmich responded that "outgoing mail, like incoming mail, is subject to review." On September 4, 2013, Plaintiff resubmitted the Prisoner Information Request because he found the response to be unsatisfactory.
On September 6, 2013, Plaintiff sent a letter to David Michael Cantor, a defense attorney. That letter was returned to Plaintiff with a sticky note from Defendant Roemmich informing Plaintiff that Mr. Cantor had moved offices and informing Plaintiff of the address to Mr. Cantor's new office. On September 8, 2013, Plaintiff submitted an informal resolution stating that someone was tampering with his outgoing mail. On September 12, 2013, Plaintiff mailed a letter marked as legal mail to Mr. Cantor's new address. The September 12, 2013 letter was opened, photocopied, and sent to Tracy Vanbuskirk, the prosecutor in Plaintiff's criminal case.
"Corrections Corporation of America's failure to properly train its staff in the proper procedure for handling legal content resulted in the damages inflicted from the invasion of [Plaintiff's] legal mail." Plaintiff seeks monetary damages.
III. Failure to State a Claim
To state a Bivens claim, a plaintiff must allege that persons acting under color of federal law violated his constitutional rights. Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (citing Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). An action under Bivens is identical to one brought pursuant to 42 U.S.C. § 1983 except for the replacement of a state actor under § 1983 by a federal actor under Bivens. Id. To state a valid constitutional claim, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant, and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).
Moreover, there is no respondeat superior liability under § 1983 or Bivens, and therefore, a defendant's position as the supervisor of persons who allegedly violated Plaintiff's constitutional rights does not impose liability. Monell v. Dep't of Soc. Servs. of City of New York., 436 U.S. 658, 691-92 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676.
Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id.
In his Second Amended Complaint, Plaintiff identifies his claims as interference with his mail and interference with his right of access to the court.
A. Defendant CCA
The United States Supreme Court has declined to expand Bivens to include a private right of action against a private entity under contract with the federal government. Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70-71 (2001). For that reason, Plaintiff may not seek relief against CCA in an action under Bivens. Accordingly, Defendant CCA will be dismissed from this case with prejudice.
B. Right of Access to the Court
For a pretrial detainee to state a claim that his right of access to the courts for his criminal prosecution was denied, Plaintiff must allege facts demonstrating that he was deprived of any meaningful opportunity to prepare his defense. See Taylor v. List, 880 F.2d 1040, 1047 (9th Cir. 1989). Here, Plaintiff does not allege facts supporting a claim that he was deprived of any meaningful opportunity to prepare his defense. Plaintiff's claims that he was denied his right of access to the court are mostly conclusory. The only fact Plaintiff alleges about his criminal case is that a letter that he sent to his defense attorney was copied and sent to the prosecutor in Plaintiff's criminal case. However, Plaintiff does not allege who sent the letter to the prosecutor in his criminal case, how the contents in the letter affected his criminal case, how he knows that the prosecutor in his criminal case was sent the letter, or any other facts showing that he was deprived of any meaningful opportunity to prepare a defense in his criminal case. Accordingly, Plaintiff has failed to state a claim based on denial of his right of access to the courts.
C. Interference with Plaintiff's Mail
Prisoners have "a First Amendment right to send and receive mail." Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). However, there must be a "delicate balance" between a prisoner's First Amendment rights and the discretion given to prison administrators to govern the order and security of the prison. Thornburgh v. Abott, 490 U.S. 401, 407-408 (1989).
Because outgoing correspondence from prisoners does not, by its very nature, pose a serious threat to internal prison order and security, there must be a closer fit between any regulation or practice affecting such correspondence and the purpose it purports to serve. Thornburgh, 490 U.S. at 411-12. 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), overruled on other grounds by Thornburgh, 490 U.S. at 413-14.
Plaintiff does not plead sufficient facts to establish that his First Amendment rights have been violated by Defendants. Plaintiff simply claims that two letters that he sent to his parents were opened by unnamed prison authorities and that Defendant Roemmich informed Plaintiff that his outgoing mail was subject to review. Plaintiff does not say whether or not the review of his outgoing mail was greater than necessary to protect the governmental interest in order and security of a prison or whether the limitation on his First Amendment rights was greater than necessary to protect the government interest involved. Plaintiff fails to state whether there is a prison regulation for inspecting mail, whether such a regulation furthered a government interest, and whether the government imposition was greater than necessary. Accordingly, Plaintiff has failed to demonstrate that the review of two letters to his parents in his outgoing mail constitutes a violation of a constitutionally protected liberty interest.
Moreover, although appropriately labeled outgoing and incoming legal mail is entitled to greater protection than other mail, see, e.g., Ramos v. Lamm, 639 F.2d 559, 582 (10th Cir. 1980), Plaintiff states no facts about who copied his legal mail, who sent it to the prosecutor, how he knows it was sent to the prosecutor and/or what effect such mailing had on his criminal case. Accordingly, Plaintiff has failed to state a claim against any named Defendant based on the alleged copying and forwarding of his legal mail.
Based on the foregoing, Plaintiff has failed to state a claim upon which relief can be granted in his Third Amended Complaint and it will be dismissed. Moreover, because Plaintiff's Third Amended Complaint has been dismissed, Plaintiff's Motion for an Order requesting service of that complaint on Defendants (Doc. 15) will be denied.
IV. Leave to Amend
For the foregoing reasons, Plaintiff's Third Amended Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a Fourth Amended Complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a Fourth Amended Complaint. If Plaintiff fails to use the court-approved form, the Court may strike the Fourth Amended Complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the "Fourth Amended Complaint." The Fourth Amended Complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint or Third Amended Complaint by reference. Plaintiff may include only one claim per count.
A Fourth Amended Complaint supersedes the original Complaint and Third Amended Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint and Third Amended Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint, first amended complaint, second amended complaint or third amended complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a Fourth Amended Complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff 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.
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
D. Possible "Strike"
Because the Third Amended Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a Fourth Amended Complaint correcting the deficiencies identified in this Order, the dismissal may count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
E. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) The Third Amended Complaint (Doc. 14) is dismissed for failure to state a claim. Defendant Corrections Corporation of America is dismissed with prejudice. Plaintiff has 30 days from the date this Order is filed to file a Fourth Amended Complaint in compliance with this Order.
(2) If Plaintiff fails to file a Fourth Amended Complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g).
(3) Plaintiff's Request for an Order (Doc. 15) is denied.
(4) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.