1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 ANDREANA WINTER, ) Case No. 1:21-cv-01194-SAB (PC) ) 12 Plaintiff, ) ) SCREENING ORDER GRANTING PLAINTIFF 13 v. ) LEAVE TO FILE AN AMENDED COMPLAINT

14 CALIFORNIA DEPARTMENT OF ) (ECF No. 1) )

CORRECTIONS AND REHABILITATION,

15 et al., ) ) 16 ) Defendants. ) 17 )

18 Plaintiff Andreana Winter is proceeding pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 Plaintiff initially filed this action, along with inmate Jonathan Kohut, on November 6, 2020. 21 On August 6, 2021, the Court ordered that the action brought by Plaintiff Andreana Winter be severed 22 and filed under a new case number. 23 I. 24 SCREENING REQUIREMENT 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 27 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 28 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] 1 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see 2 also 28 U.S.C. § 1915A(b). 3 A complaint must contain “a short and plain statement of the claim showing that the pleader is 4 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 5 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 6 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 7 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 8 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 9 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 10 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 11 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 12 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 13 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 14 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 15 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 16 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 17 II. 18 COMPLAINT ALLEGATIONS 19 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of the sua 20 sponte screening requirement under 28 U.S.C. § 1915. 21 In July 2019, Plaintiff sought to submit a CDCR Form 1074 in order to correspond with inmate 22 Kohut. The form was submitted to CCI Gates (not named, possible Doe) to which no response was 23 received. 24 In mid-November 2019, Plaintiff received a copy of an approved Form 1074 via institutional 25 mail. A couple days later, Plaintiff sent a letter to inmate Kohut as well as a copy of the completed 26 form to advise him of the authorization. The reverse side of the Form 1074 copy contained an 27 advisement/request to Pleasant Valley State Prison mailroom officials so the document would be 28 properly filed. A couple of weeks later, Plaintiff received a response from inmate Kohut, and the 1 envelope bore the stamp “correspondence on file.” Plaintiff sent Kohut a letter the following day. On 2 December 30, 2019, Plaintiff received the letter back with a notice on the envelope that stated there 3 was no Form 1074 on file. On January 2, 2020, Plaintiff meet with Defendant Gaona in an attempt to 4 fix the problem. Plaintiff explained the situation to Gaona and provided copies of the approved Form 5 1074, which contained Gaona’s signature. Gaona retained the documents and Plaintiff was 6 rescheduled to be seen the following week. 7 On January 13, 2020, Plaintiff was summoned and informed by Defendant Gaona that the 8 approval had not yet been entered in either Plaintiff or inmate Kohut’s files. One copy of the Form 9 1074 was returned to Plaintiff, and Plaintiff was directed to return the following week. 10 Plaintiff made repeated attempts to write inmate Kohut throughout the period described 11 following the Form 1074’s approval. Plaintiff received mail from inmate Kohut, but Plaintiff’s mail 12 was returned from Pleasant Valley State Prison with a notation that there was no Form 1074 on file. 13 On January 27, 2020, Plaintiff was advised by Defendant Gaona that the Form 1074 was still 14 not entered in either Plaintiff or inmate Kohut’s files. Plaintiff presented more mail she had received 15 from inmate Kohut which bore the stamp “correspondence on file.” Defendant Gaona advised 16 Plaintiff to submit another Form 1074. Gaona could have looked on the computer and resolved the 17 whole issue. Instead, Gaona chose to give Plaintiff the runaround. 18 In early February 2020, Plaintiff filed a inmate appeal to the appeals coordinator. Plaintiff was 19 subsequently interviewed by Defendant Ollison. Plaintiff presented documentation and Ollison 20 advised Plaintiff that there was Form 1074 in either Plaintiff of Kohut’s files. Plaintiff was later 21 summoned for a follow-up interview and Ollison claimed that measures had been taken in the form of 22 phone calls and e-mails and the issue was resolved. 23 On April 3, 2020, an outgoing letter addressed to inmate Kohut was “held up in the unit office 24 at CCWF due to a nightwatch official’s claim of there being no 1074 on file.” Plaintiff filed another 25 inmate appeal and was given assurance by an official that “it would not be recurring.” 26 /// 27 /// 28 /// 1 III. 2 DISCUSSION 3 A. First Amendment-Mail Interference 4 Under the First Amendment, inmates have the right to send and receive mail. See Thornburgh 5 v. Abbott, 490 U.S. 401, 407 (1989); Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). However, a 6 prison may adopt regulations that impinge on an inmate’s constitutional rights if those regulations are 7 “reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987); 8 Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (holding that an inmate’s right to 9 send and receive mail “is subject to ‘substantial limitations and restrictions in order to allow prison 10 officials to achieve legitimate correctional goals and maintain institutional security’”). The Turner 11 standard applies to regulations and practices concerning all correspondence between prisoners. 12 Thornburgh, 490 U.S. at 413. 13 When a prison regulation affects outgoing mail as opposed to incoming mail, there must be a 14 ‘closer fit between the regulation and the purpose it serves.’” Witherow, 52 F.3d at 265 (quoting 15 Thornburgh, 490 U.S. at 412). Courts afford greater protection to legal mail than non-legal mail. See 16 Thornburgh, 490 U.S. at 413. A single mistake or occasional mishandling of mail, legal or nonlegal, 17 does not state a claim under section 1983. Reynolds v. Potts, 8 F.3d 29 (9th Cir. 1993) (citations 18 omitted). A claim for negligent mishandling or misdirection of mail is also not actionable under 1983. 19 Rhinehart v. Gomez, 205 F.3d 1352 (9th Cir. 1999) (citing Daniels v. Williams, 474 U.S. 327, 330–32 20 (1986)). Moreover, a plaintiff must be able to show that she was injured; mere delay in receiving or 21 sending mail does not state a cognizable claim. See Reynolds, 8 F.3d at 29; (citing Morgan v. 22 Montanya, 516 F.2d 1367, 1371 (2d Cir. 1975)). Isolated incidents of mail interference without any 23 evidence of improper motive or resulting interference with the right to counsel or access to the courts 24 do not give rise to a constitutional violation, however. See Smith v. Maschner, 899 F.2d 940, 944 25 (10th Cir. 1990); Morgan v. Montanye, 516 F.2d 1367, 1370-71 (2d Cir. 1975) (no claim where letter 26 from prisoner's attorney opened out of prisoner's presence in single instance). 27 The handling of inmate mail is governed by the California Code of Regulations, title 15, §§ 28 3130–3147. To correspond with one another, CDCR inmates must submit a form 1074, Request for 1 Correspondence Approval. Cal. Code Regs. tit. 15, § 3139. “When incoming or outgoing mail, 2 packages, or publications addressed to or being sent by an inmate are withheld or disallowed, the 3 inmate shall be informed via CDCR Form 1819 . . . , Notification of Disapproval- 4 Mail/Packages/Publications, of the reason, disposition, name of official disallowing the 5 mail/package/publication, and the name of the official to whom a grievance can be directed. Cal. Code 6 Regs. tit. 15, § 3136(a). 7 Plaintiff contends that as a result of repeated unjust delays in the communication between 8 Plaintiff and inmate Kohut, Plaintiff’s First Amendment rights were violated. Plaintiff's conclusory 9 allegations of isolated instances of interference with or delay of mail are insufficient to state a 10 cognizable claim. Although allegations of delayed delivery for “an inordinate amount of time” have 11 been held sufficient to state a claim for violation of the First Amendment, see e.g., Antonelli v. 12 Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996), the Ninth Circuit and other Courts of Appeal have found 13 temporary and/or isolated instances of delay, like those alleged to have occurred in Plaintiff’s 14 complaint, do not offend any First Amendment principles. See Crofton v. Roe, 170 F.3d 957, 961 (9th 15 Cir. 1999) (as amended); Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003); Gardner v. Howard, 109 16 F.3d 427, 431 (8th Cir. 1997); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990); see also 17 Furnace v. Cope, No. 1:16-CV-00420-LJO-BAM PC, 2018 WL 2198716, at *7 (E.D. Cal. May 14, 18 2018) (recommending sua sponte dismissal of prisoner's outgoing mail claims pursuant to 28 U.S.C. § 19 1915A(b)(1), (2) and 28 U.S.C. § 1915(e)(2)(B)(ii)). 20 Furthermore, Plaintiff does not describe the specific actions by each of the several named 21 Defendants. In addition, to the extent certain Defendants are named solely because of their 22 supervisory role, a plaintiff may state a claim for against a supervisor based on the supervisor's 23 knowledge of, and acquiescence in, unconstitutional conduct by his or her subordinates. Starr v. Baca, 24 652 F.3d 1202, 1207 (9th Cir.2011). “A defendant may be held liable as a supervisor under § 1983 ‘if 25 there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a 26 sufficient causal connection between the supervisor's wrongful conduct and the constitutional 27 violation.’ ” Id. (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989)). “The inquiry into 28 causation must be individualized and focus on the duties and responsibilities of each individual 1 defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. 2 Murphy, 844 F.2d 628, 633 (9th Cir.1988). A causal connection is established if a defendant sets in 3 motion a series of acts by others or knowingly refuses to terminate a series of acts by others that the 4 supervisor reasonably should have known would lead to a constitutional violation. Starr, 652 F.3d at 5 1207–08 (citing Dubner v. City & County of San Francisco, 266 F.3d 959, 968 (9th Cir.2001)). “ ‘A 6 supervisor can be liable in his individual capacity for his own culpable action or inaction in the 7 training, supervision, or control of his subordinates; for his acquiescence in the constitutional 8 deprivation; or for conduct that showed a reckless or callous indifference to the rights of others.’ ” 9 Starr, 652 F.3d at 1209 (quoting Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.1998)). 10 Moreover, Defendants cannot be held liable simply because they were involved in the appeals process. 11 There is no constitutional right to a prison administrative appeal or grievance system. See Ramirez v. 12 Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). To the 13 extent Plaintiff seeks to hold Defendants liable as supervisors, she has failed to show any personal 14 involvement in the alleged constitutional violation. 15 IV. 16 CONCLUSION AND ORDER 17 For the reasons discussed, Plaintiff has failed to state a claim for a violation of his federal rights. 18 Given Plaintiff’s pro se status, the Court will grant Plaintiff one opportunity to amend the complaint if 19 she believes she can do so in good faith. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 20 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what each 21 named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 22 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief 23 above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). Further, Plaintiff may 24 not change the nature of this suit by adding new, unrelated claims in his amended complaint. George v. 25 Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 26 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. Lacey 27 v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended complaint must 28 be “complete in itself without reference to the prior or superseded pleading.” Local Rule 220. 1 Based on the foregoing, it is HEREBY ORDERED that: 2 1. The Clerk of Court shall send Plaintiff a prisoner civil rights complaint form; 3 Within thirty (30) days from the date of service of this order, Plaintiff shall file □ 4 amended complaint; and 5 2. If Plaintiff fails to file an amended complaint in compliance with this order, the Cou 6 will recommend to the district judge that this action be dismissed consistent with tl 7 reasons stated in this order. 8 9 IT IS SO ORDERED. 1 (ee 10 || Dated: _ November 4, 2021 OF 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28