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

SHELDON JOHNSON,

11 Case No. 22-cv-01342 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH v. LEAVE TO AMEND; DENYING 13 MOTION FOR APPOINTMENT OF

COUNSEL

14 SAN MATEO COUNTY, et al.,

15 Defendants.

16

17 18 Plaintiff, a state prisoner, filed a civil rights action under 42 U.S.C. § 1983 against 19 the San Mateo County Board of Supervisors for unconstitutional prison conditions at the 20 Maguire Correctional Facility (“MCF”) in Redwood City, where Plaintiff is currently 21 confined. Dkt. No. 1. In the complaint, Plaintiff requests appointment of counsel. Id. at 3. 22 Plaintiff has filed a motion for leave to proceed in forma pauperis, which shall be 23 addressed in a separate order. Dkt. No. 1. This matter was reassigned to the Undersigned 24 on March 8, 2022. Dkt. Nos. 5, 6. 25 26 DISCUSSION 27 A. Standard of Review 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 4 upon which relief may be granted or seek monetary relief from a defendant who is immune 5 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 6 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 8 elements: (1) that a right secured by the Constitution or laws of the United States was 9 violated, and (2) that the alleged violation was committed by a person acting under the 10 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 11 B. Plaintiff’s Claims 12 Plaintiff claims that his First Amendment right to receive mail was violated when 13 the “Sheriff County Authorities” stopped all inmates’ incoming mail postal services 14 throughout MCF on April 4, 2021. Dkt. No. 1 at 3. Apparently, this action was taken 15 because someone outside the community was conspiring with inmates to smuggle “13 film 16 strip of suboxone” into the jail through the mail. Id. Plaintiff claims the “Sheriff 17 Authorities” failed to identify the suspect and instead shut down all incoming letters, 18 including letters from family, friends, children, and businesses. Id. at 3-4. Plaintiff seeks 19 injunctive relief, appointment of counsel, and damages. Id. at 3. 20 Prisoners enjoy a First Amendment right to send and receive mail. See Witherow v. 21 Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407 22 (1989)). A prison, however, may adopt regulations or practices which impinge on a 23 prisoner’s First Amendment rights as long as the regulations are “reasonably related to 24 legitimate penological interests.” See Turner v. Safley, 482 U.S. 78, 89 (1987). The 25 Turner standard applies to regulations and practices concerning all correspondence 26 between prisoners and to regulations concerning incoming mail received by prisoners from 1 the receipt of mail, including subscription publications, which triggers procedural due 2 process guarantees. Krug v. Lutz, 329 F.3d 692, 696-967 (9th Cir. 2003). If prison 3 officials withhold mail, a prisoner has a due process right to receive notice that his 4 incoming mail is being withheld. See Frost v. Symington, 197 F.3d 348, 353-54 (9th Cir. 5 1999); see also Prison Legal News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir. 2001) 6 (holding that due process rights apply to withheld mail where prisoners had 7 constitutionally protected right to receive the mail). 8 Plaintiff’s allegations implicate his First Amendment and due process rights, but 9 they are insufficient to state a claim. First, he fails to establish that the named Defendants 10 are liable for the violation of these rights. Plaintiff names the San Mateo County Board of 11 Supervisors (the “Board”) and its individual members as Defendants in this action. Dkt. 12 No. 1 at 2. But nowhere in the complaint does he specifically allege that the Board or its 13 individual members were involved in the decision to stop incoming mail at MCF. Rather, 14 he alleges that the “Sheriff Authorities” made this decision. See supra at 2. Therefore, the 15 appropriate Defendants for his First Amendment claim would be the state actors at MCF 16 who made that decision, not the Board. Furthermore, Plaintiff’s allegations indicate that 17 the decision to stop all mail was related to a legitimate penological interest, i.e., to stop 18 contraband from coming into the prison. Therefore, in order to state a cognizable First 19 Amendment claim, Plaintiff must allege that the appropriate Defendants’ actions were not 20 reasonably related to a legitimate penological interest under Turner. Secondly, Plaintiff 21 may be able to state a due process claim if he can allege that he was not given notice that 22 his incoming mail was going to be withheld. See Frost, 197 F.3d at 353-54. Plaintiff shall 23 be granted leave to file an amended complaint to allege sufficient facts to state claims 24 under the First Amendment and due process. 25 The Court also notes that Plaintiff may not have exhausted administrative remedies 26 before filing this action. Dkt. No. 1 at 2. Under the section I, Exhaustion of 1 2. Instead, he indicates that he did not present his claim for review through the grievance 2 procedure because “[t]his is a constitutional First Amendment violation denies [sic] 3 Plaintiff U.S. postal mail services to custody facility.” Dkt. No. 1 at 2. The Prison 4 Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (“PLRA”), 5 amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with respect to 6 prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 7 confined in any jail, prison, or other correctional facility until such administrative remedies 8 as are available are exhausted.” 42 U.S.C. § 1997e(a). “Prisoners must now exhaust all 9 ‘available’ remedies, not just those that meet federal standards.” Woodford v. Ngo, 548 10 U.S. 81, 84 (2006). Even when the relief sought cannot be granted by the administrative 11 process, i.e., monetary damages, a prisoner must still exhaust administrative remedies. Id. 12 at 85-86 (citing Booth v. Churner, 532 U.S. 731, 734 (2001)). The mandatory exhaustion 13 of available administrative remedies is not limited to suits under § 1983, but to any suit 14 challenging prison conditions. Id. at 85 (citing Porter v. Nussle, 534 U.S. 516, 524 15 (2002)). Lastly, the PLRA’s exhaustion requirement requires “proper exhaustion” of 16 available administrative remedies. Id. at 93. 17 Plaintiff is advised that he must have exhausted administrative remedies for this 18 First Amendment claim, or any claim, before he can proceed with claims in this Court. As 19 such, if he has not yet exhausted all the claims herein, then this action must be dismissed 20 without prejudice. Plaintiff may return and file a new action only after he has exhausted 21 all available administrative remedies through MCF’s inmate grievance procedures. 22 However, if Plaintiff has exhausted administrative remedies since filing this action 23 and can proceed, Plaintiff may indicate that he has exhausted in an amended complaint. In 24 preparing an amended complaint, Plaintiff should keep the following legal standards in 25 mind. Liability may be imposed on an individual defendant under § 1983 only if Plaintiff 26 can show that the defendant proximately caused the deprivation of a federally protected 1 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a constitutional right 2 within the meaning of section 1983 if he does an affirmative act, participates in another’s 3 affirmative act or omits to perform an act which he is legally required to do, that causes the 4 deprivation of which the plaintiff complains. See Leer, 844 F.2d at 633. 5 C. Motion for Appointment of Counsel 6 Plaintiff requests appointment of counsel as a form of relief. Dkt. No. 1 at 3. There 7 is no constitutional right to counsel in a civil case unless an indigent litigant may lose his 8 physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social Services, 452 U.S. 9 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional 10 right to counsel in § 1983 action), withdrawn in part on other grounds on reh’g en banc, 11 154 F.3d 952 (9th Cir. 1998) (en banc). The decision to request counsel to represent an 12 indigent litigant under § 1915 is within “the sound discretion of the trial court and is 13 granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th 14 Cir. 1984). Plaintiff has set forth no grounds to warrant appointment of counsel. 15 Accordingly, the motion is DENIED for lack of exceptional circumstances. See Agyeman 16 v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 17 1525 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. 18 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 19 20 CONCLUSION 21 For the reasons state above, the Court orders as follows: 22 1. The complaint is DISMISSED with leave to amend. Within twenty-eight 23 (28) days from the date this order is filed, Plaintiff shall file an amended complaint using 24 the court’s form complaint to correct the deficiencies described above. The amended 25 complaint must include the caption and civil case number used in this order, i.e., Case No. 26 C 22-cv-01342 BLF (PR), and the words “AMENDED COMPLAINT” on the first page. 1 || including the section on exhaustion. Plaintiff is reminded that the amended complaint 2 || supersedes the original, and Plaintiff may not make references to the original complaint. 3 || Claims not included in the amended complaint are no longer claims and defendants not 4 || named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 5 || F.2d 1258, 1262 (9th Cir.1992). 6 2. Failure to respond in accordance with this order by filing an amended 7 || complaint in the time provided will result in the dismissal of this action with 8 || prejudice for failure to state a claim without further notice to Plaintiff. 9 IT IS SO ORDERED. 10 || Dated: July 11, 2022 ba Low homer

BETH LABSON FREEMAN

United States District Judge g

41

16

Oo

Z 18

19 20 21 22 23 24 25 Order of Dismissal with Leave to Amend; Denying M. For Appt. of Counsel PRO-SE\BLF\CR.22\01342Johnson_dwlta&atty 26 27