(PC) Martirosyan v. St. Andre

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA RAFAEL MARTIROSYAN, No. 2:23-cv-01382-DAD-EFB 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART AND ST. ANDRE, et al., DISMISSING THE SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND 15 Defendants. (Doc. No. 19, 22) 17 Plaintiff Rafael Martirosyan is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20 On August 16, 2024, the assigned magistrate judge issued findings and recommendations recommending that this action be dismissed without leave to amend due to plaintiff’s failure to state a cognizable claim for relief in his second amended complaint (“SAC”). (Doc. No. 19.) In this regard, the magistrate judge determined that plaintiff’s First Amendment claim alleging that an unidentified Doe defendant opened plaintiff’s mail that was marked “Legal” outside plaintiff’s presence should be dismissed because: (1) plaintiff had failed to allege that the envelope which was opened contained material considered to be “legal mail” such as mail from an attorney as opposed to mail from the courts; and (2) plaintiff failed to allege facts showing that there was a ///// pattern or practice of opening his true “legal mail” outside of his presence. (Id. at 3.)1 Plaintiff also asserted that defendants’ conduct was in violation of a regulation found in title 15 of the California Code of regulations. (Id. at 3–4.) However, the magistrate judge concluded that this allegation did not amount to a cognizable claim for relief because the state regulation did not provide a private right of action. (Id. at 4.) It was also recommended that plaintiff’s claim brought against defendant St. Andre for ruling against plaintiff in response to an inmate grievance be dismissed because alleging that a prison official inappropriately denied or failed to adequately respond to an inmate grievance, without more, does not state a claim under § 1983. (Id.) Next, it was recommended that plaintiff’s supervisory liability claim also brought against defendant St. Andre be dismissed because there is no respondeat superior liability under § 1983. (Id.) Finally, it was recommended that the claim brought against defendant Rodriguez be dismissed because plaintiff’s allegations that he was forced to wait approximately twenty (20) minutes in a holding cell was a de minimis harm and therefore was non-actionable. (Id. at 4–5.)

14 The findings and recommendations were served upon plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 5–6.) On September 19, 2024, the assigned magistrate judge granted plaintiff’s motion for an extension of time to file objections (Doc. No. 20) and directed plaintiff to file objections no later than October 14, 2024. (Doc. No. 21.) On October 24, 2024,2 plaintiff filed objections to the pending findings and recommendations. No response to plaintiff’s objections were filed by defendants.

20 In his objections, plaintiff first argues that a single instance of his legal mail being opened by a Doe defendant can constitute a constitutional violation. (Doc. No. 24 at 6.) In support of this objection plaintiff cites to a decision of the Ninth Circuit Court of Appeals in which it was found that an allegation of two instances of improper opening of a prisoner’s legal mail was a The magistrate judge also noted that “[a]s to legal mail, the question of whether it may be opened outside the inmate’s presence is an open question in the Ninth Circuit.” (Doc. No. 19 at 3) (citing Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir. 1981) and Pangborn v. CDCR, No. 2:22-cv-1998-DAD-KJN (PC), 2023 WL 2938383, *5 (E.D. Cal. Apr. 23, 2023)).

2 The undersigned notes that the delay in filing objections appears to be due to plaintiff being transferred to Calipatria State Prison in October. (Doc. No. 23.)

1 sufficient basis upon which to allege a Sixth Amendment violation. (Id.) (citing Mangiaracina v. Penzone, 849 F.3d 1191, 1196–97 (9th Cir. 2017) (“Thus, even isolated incidents of improper mail opening may, in appropriate circumstances, be sufficient to allege a Sixth Amendment violation.”)). Plaintiff next objects to the finding that in the allegations of his SAC he had failed to describe the letter which he alleges was opened by a Doe defendant outside of his presence.

6 (Doc. No. 24 at 7–8.) Specifically in this regard, plaintiff cites to paragraphs 22 and 41 of his SAC. (Id.) Plaintiff also objects to the recommendation that his second claim brought against defendant St. Andre be dismissed, arguing that he has properly alleged a claim for supervisory liability. (Doc. No. 24 at 9.) Finally, plaintiff has attached a copy of Exhibit 2 of his SAC to his objections. (Doc. No. 24 at 13–16.) The court will address each of plaintiff’s objections below.

11 Plaintiff alleges that his First Amendment rights were violated, rather than his Sixth Amendment rights. (Doc. No. 16 at ¶ 41.) The findings and recommendation concluded that this claim was subject to dismissal, in part, because plaintiff had failed to allege facts showing that there was a pattern or practice of opening his “legal mail” outside of his presence at his place of confinement. (Id. at 3.) However, the Ninth Circuit has held that in order to state a cognizable claim for violation of his First or Sixth Amendment rights, a prisoner plaintiff is not required to allege a pattern or practice of such conduct and that a single, isolated instance of that conduct may be sufficient to state a claim. See Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1212 (9th Cir. 2017) (“But a plaintiff need not allege a longstanding practice of violating his First Amendment rights [by prison officials opening his legal mail outside his presence] in order to state a claim for relief[.]”); Mangiaracina v. Penzone, 849 F.3d 1191, 1196-97 (9th Cir. 2017) (the Sixth Amendment requires a pretrial detainee be present when legal mail related to a criminal matter is inspected; even a single incident of improper reading of a pretrial detainee's mail may give rise to a constitutional violation; and reversing the dismissal of plaintiff’s First Amendment claim as well.); Nyland v. Calaveras Cnty. Sheriff's Jail, 688 Fed. App’x. 483, 485–86 (9th Cir. 2017)3 (vacating dismissal of claims related to the opening of the plaintiff’s legal mail); Doreh v. Citation to this and other unpublished Ninth Circuit opinions in this order is appropriate pursuant to Ninth Circuit Rule 36–3(b).

1 Rodriguez, 723 Fed. App’x. 530, 531 (9th Cir. 2018); see also Camposeco v. Bordreaux, No. 1:19-cv-01330-AWI-BAM (PC), 2021 WL 4710801, at *9 (E.D. Cal. Oct. 8, 2021) (finding that the plaintiff’s allegation that the defendants had opened legal mail and viewed a flash drive contained therein on one occasion stated a cognizable claim for violation of his First Amendment rights), report and recommendation adopted, No. 1:19-cv-01330-AWI-BAM (PC), 2021 WL 6 5330955 (E.D. Cal. Nov. 16, 2021).4 Thus, in order to survive a motion to dismiss, a plaintiff need only allege that there was an instance where “mail [that] was marked ‘Confidential Legal Mail’ [or] that [] concerned actual or contemplated litigation[]” was opened outside of his presence. Corral v. Woodman, No. 2:18-cv-01769-KJM-DMC (PC), 2019 WL 6838682, at *2 (E.D. Cal. Dec. 16, 2019). Accordingly, the undersigned will decline to adopt the recommendation that plaintiff’s First Amendment claim be dismissed based upon his failure to allege facts showing that there was a pattern or practice of opening his “legal mail” outside of his presence.

14 Plaintiff’s second objection—that he has alleged with sufficient specificity the legal nature of his mail which was purportedly opened outside his presence—is somewhat less straight forward. At paragraph 22 of his SAC plaintiff alleges that he filed an inmate grievance which he attached as Exhibit 1 to his complaint. (Doc. No. 16 at ¶ 22.) In paragraph 41 of the SAC plaintiff alleges that an unidentified defendant violated plaintiff’s First Amendment rights by opening an envelope clearly marked as “Confidential Legal Mail” outside of plaintiff’s presence.

20 (Id. at ¶ 41.) However, plaintiff does not otherwise describe this envelope or allege that it actually contained legal mail. See, e.g., Turner v. Williams, No. 16-cv-06764-PA-JPR, 2018 WL 22 1989512, at *3 (C.D. Cal. Mar. 9, 2018) (finding that the plaintiff was required to plausibly allege that the mail opened by the defendant was legal mail under the Ninth Circuit’s definition), report and recommendation adopted, No. 16-cv-06764-PA-JPR, 2018 WL 1989513 (C.D. Cal. Apr. 25, 4 As noted above, the findings and recommendations relied upon the Ninth Circuit’s earlier decision in Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989). However, Stevenson has subsequently been distinguished from cases like this one because in Stevenson the court held only that the defendant probation officer who had delivered the mail could not be held liable for a correctional officer’s opening of the plaintiff’s legal mail outside the prisoner plaintiff’s presence.

28 Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1209 (9th Cir. 2017).

1 2018). To state a cognizable claim for relief under the First Amendment for improper opening of a prisoner’s legal mail outside of the prisoner’s presence, a plaintiff must allege who sent the mail, whether it was properly marked as legal mail, and that the mail concerned an actual or contemplated legal proceeding. See id. at *3 (finding that the plaintiff failed to allege that the mail she received was from an entity representing her or that it “concerned an actual or contemplated legal proceeding[]”); see also Montgomery v. Madera Dep’t of Corr., 1:23-cv- 00919-SAB (PC), 2023 WL 6316420, at *2 (E.D. Cal. Sept. 28, 2023) (discussing the requirements for legal mail and holding that the plaintiff had failed to state a cognizable claim for relief where the plaintiff failed to allege who sent legal mail to her, its contents, or whether it was clearly marked as legal mail). While plaintiff has attached the envelope and its contents as exhibits to the complaint, “[a]ll allegations necessary to state a claim upon which relief can be granted must be included in the body of plaintiff’s amended complaint.” Keesee v. Stanislaus Cnty., No. 2:23-cv-01854-DAD-CKD (PC), 2024 WL 4268071 (E.D. Cal. Sept. 23, 2024). While the undersigned notes that the exhibit marked Exhibit 2 in plaintiff’s SAC does appear to be an envelope bearing a stamp designating it as “Confidential Legal Mail” and appears on its face to be from a law firm, the SAC does not contain any allegations indicating what Exhibit 2 is supposed to represent or otherwise referring to the exhibit. (Doc. No. 16 at 10); see United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (noting that documents attached to a complaint may be considered part of the pleading or incorporated by reference if plaintiff “refers extensively to the document”); see also Budd v. Flemming, No. 1:23-cv-00748-BAM (PC), 2023 WL 7131888, at *2 (E.D. Cal. Oct. 30, 2023) (finding that exhibits which were attached to the plaintiff’s complaint but not incorporated by reference or explained are not required to be considered), report and recommendation adopted, No. 1:23-cv-00748-KES-BAM (PC), 2024 WL 1886600 (E.D. Cal. Apr. 30, 2024). Therefore, the undersigned will adopt the magistrate judge’s finding that plaintiff has not included a description of the mail he maintains was “legal mail” and will dismiss his First Amendment claim.

27 However, “[t]here is no respondeat superior liability under § 1983, and the supervisor of an individual who allegedly violated a plaintiff’s constitutional rights is not made liable for the violation simply by virtue of that role.” Saved Mag. v. Spokane Police Dep’t, 505 F. Supp. 3d 2 1095, 1104 (E.D. Wash. 2020) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)), aff’d, 19 F.4th 1193 (9th Cir. 2021). Plaintiff’s objections then do not provide a basis on which to reject the recommendation that his supervisory liability claim be dismissed. Accordingly, the undersigned will adopt the magistrate judge’s recommendation that plaintiff’s supervisory liability claim against defendant St. Andre be dismissed.

7 Though the undersigned is not certain as to whether these are representations of the envelope that plaintiff alleges a Doe defendant opened, it appears at least possible. These documents could be incorporated by reference to support a further amended complaint and it is not clear that “the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). Thus, the court declines to adopt the pending recommendation that plaintiff’s First Amendment claim against the Doe defendant be dismissed with prejudice. Rather, the court will dismiss that claim with further leave to amend and provide plaintiff an opportunity to file a third amended complaint against defendants to attempt to cure the deficiencies identified by the screening order and findings and recommendations dated August 16, 2024. (Doc. No. 19.)

17 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a de novo review of the case. Having carefully reviewed the entire file, the court concludes that the pending findings and recommendations are supported by the record and proper analysis.

20 Accordingly, 21 1. The findings and recommendations issued on August 16, 2024 (Doc. No. 19) are 22 adopted in part as follows: 23 a. Plaintiff’s supervisory liability claim against defendant St. Andre is 24 dismissed without leave to amend; 25 b. Plaintiff’s grievance processing claim against defendant St. Andre is 26 dismissed without leave to amend; 27 c. Plaintiff’s unlawful retaliation claim against defendant Rodriguez is 28 dismissed without leave to amend; 1 2. The court declines in part to adopt the findings and recommendations (Doc. No. 2 19) recommending that plaintiff's First Amendment claim against a Doe defendant 3 be dismissed without leave to amend; 4 3. Plaintiff's First Amendment claim against a Doe defendant is dismissed, with 5 leave to amend; 6 4. Within thirty (30) days from the date of this order, plaintiff shall either file a third 7 amended complaint or a notice of his intent not to do so; 8 5. Plaintiff is warned that his failure to file a third amended complaint will result in 9 dismissal of this action; 10 6. The Clerk of the Court is directed to update the docket to reflect that defendants 11 St. Andre and Rodriguez have been terminated as named defendants from this 12 action; and 13 7. This matter is referred back to the magistrate judge for further proceedings 14 consistent with this order.

15 IT IS SO ORDERED. '6 Dated: _ January 17, 2025 Dak A. 2d, aryek 17 DALE A. DROZD UNITED STATES DISTRICT JUDGE