Opinion
6:20-CV-00638-JR
03-02-2023
RANDY LLOYD HOGE, JR., Plaintiff, v. MARION COUNTY SHERIFF DEPUTY S. GRIFFITH, MARION COUNTY SHERIFF JOE KAST, MARION COUNTY SHERIFF'S TRAINER “JOHN OR JANE DOE,” Defendants.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE
Pro se Plaintiff, Randy L. Hoge, Jr. (“Plaintiff”) is an adult in custody (“AIC”) incarcerated at the Oregon State Penitentiary. He has brought a civil rights action pursuant to 42 U.S.C. § 1983 alleging his First Amendment rights were violated when two pieces of legal mail were opened outside his presence. Am. Compl., ECF No. 37. At the time, Plaintiff was a pretrial detainee at the Marion County Jail (“the Jail”). Id. Before the Court are cross-motions for summary judgment. See Pl.'s Mot. Summ. J., ECF No. 45; Defs.' Mot. Summ. J., ECF No. 50.
For the reasons discussed below, Defendants' motion for summary judgment should be GRANTED and Plaintiff's motion for summary judgment should be DENIED
FACTUAL BACKGROUND
On March 26, 2020, Defendant Marion County Sheriff Deputy Griffith opened two pieces of legal mail addressed to Plaintiff outside of Plaintiff's presence. Am Compl. at 3. Both pieces of mail were marked “Legal Mail.” Id. at 4.
The first piece of mail was a letter “regarding counsel” sent by Plaintiff to an attorney. Id. at 4; Hoge Decl. at 12, ECF No. 46. It was returned to sender by the United States Postal Service due to an address issue. Am. Compl. at 4; Griffith Decl. at 2, ECF No. 49. Griffith admits he “purposefully opened this piece of mail under his mistaken belief at the time that all mail returned to sender was to be opened as normal.” Griffith Decl. at 2.
The second piece of mail was sent from an attorney to Plaintiff, regarding Plaintiff “seeking [legal] help.” Am Compl. at 5; Hoge Decl. at 11. Griffith admits he erroneously opened this piece of mail because “the legal mail indication was in a different place than [he] normally see[s] it.” Griffith Decl. at 2.
Griffith states that he did not read either piece of legal mail, he delivered them both to Plaintiff by sliding them under his cell door, and he apologized to Plaintiff for his mistake. Id. at 2-3. Plaintiff filed a grievance regarding the incident. Am. Compl at 5; Griffith Decl. at 3. Griffith reviewed Policy 3405 governing the handling of mail, which provides:
17. Jail employees will inspect all incoming mail, except for that marked as “Legal Mail” or “official Mail,” out of the presence of the intended recipient prior to delivery. This may include the opening of sealed envelopes and packages.
18. All incoming mail, except for that marked as “Legal Mail” or “Official Mail,” may be read, photocopies, and forwarded to law enforcement personnel to facilitate the maintenance of the safety and security of the Jail and to further the detection and investigation of criminal activities or enterprises.
22. AIC mail received at the jail will qualify for special processing only if the envelope or parcel is clearly marked as “LEGAL MAIL” or “OFFICIAL MAIL.” Mail which otherwise qualifies as legal or official mail but lacks the proper designation will be processed as ordinary mail (i.e., will be subject to inspection outside the AIC's presence.” Jail employees will receipt mail that is designated as legal or official mail but proves to be ordinary mail and will place it in the AIC's property.
23. Jail employees will open and inspect legal or official mail sent from or received in the jail in sealed envelopes for contraband and other materials defined as “Prohibited Mail” by this policy in the presence of the AIC recipient. Jail employees will not read or photocopy valid legal and official mail.
25. Jail employees that inadvertently open legal mail will complete an unusual incident report under the AIC's name in the computerized reporting system. They will then notify the shift supervisor and provide the AIC with a copy of the report and the opened mail.
Legal Mail is defined as “Incoming mail from or outgoing mail to the following: the Sheriff, Chiefs of Police, Judges (Federal, State, County and Municipal), Attorneys, American Civil Liberties Union, Public Officials acting in their official capacity, Legal Aid, U.S. Board of Parole, U.S. Marshals Office, Director of Bureau of Prisons, and the U.S. Attorney General.
Griffith Decl. at Ex. A, ECF. No. 49-1. Griffith realized he “was in the wrong” to open the piece of mail that was returned to sender, so he generated an incident report, and gave a signed, printed copy to Plaintiff. Griffith Decl. at 3; Griffith Decl. at Ex. B, ECF No. 49-2. Griffith also told the shift supervisor, as required by Jail policy. Griffith Decl. at 3.
LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of establishing the absence of any genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once this initial burden is met, the burden shifts to the nonmoving party to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id. On cross-motions for summary judgment, the court considers each motion separately and considers party's motion on its own merits. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The court must “draw all reasonable inferences against the party whose motion is under consideration.” Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d Cir. 1981). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations and quotation marks omitted).
Because Plaintiff is proceeding pro se, the court construes his pleadings liberally and affords him the benefit of any doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Lopez v. Dep't of Health Servs., 939 F.2d 881, 882-83 (9th Cir. 1991). However, this does not relieve Plaintiff from his “obligation to show a genuine issue of material fact for trial through the presentation of specific, admissible evidence.” Epling v. Komathy, No. 10-CV-5862-GAF (RNB), 2011 WL 13142131, at *1 (C.D. Cal. Dec. 5, 2011).
DISCUSSION
I. Plaintiff's Motion for Summary Judgment
Plaintiff alleges Griffith violated his First Amendment rights when he wrongfully opened legal mail outside of Plaintiff's presence. Pl.'s Mot. for Summ. J. at 6. Plaintiff argues he is entitled to summary judgment because he “does not need to show any actual injury beyond the Free Speech violation itself to state a constitutional violation.” Id. Plaintiff also alleges Defendants Marion County Sheriff Joe Kast and Trainer “John or Jane Doe” failed to properly train Jail staff on how to handle legal mail. Am. Compl. at 3; Pl.'s Resp. in Opp'n at 6, ECF No. 52.
II. Defendants' Motion for Summary Judgment
Defendants argue they are entitled to summary judgment because Griffith's actions do not rise to the level of a constitutional violation, and, even if they did, he would be entitled to qualified immunity. Defs.' Mot. for Summ. J. at 1. Defendants argue that Plaintiff's failure to train claims also fail because (1) Plaintiff has not properly identified or served John or Jane Doe; and (2) Plaintiff has not established Sheriff Kast's personal involvement in any constitutional violation. Id. at 5-6.
III. Analysis
A. Failure to Prosecute
Plaintiff alleges John or Jane Doe failed to train Jail staff to properly handle legal mail. However, Plaintiff has not identified or served John or Jane Doe through discovery, and the time for doing so has passed. See Scheduling Order dated March 31, 2022, ECF No. 43 “[W]here a plaintiff fails to take reasonable efforts to identify the unknown defendants, the district court can dismiss for failure to prosecute.” Wilcox v. Batiste, 360 F.Supp.3d 1112, 1126 (E.D. Wash. 2018). The Court therefore should dismiss without prejudice all claims against John or Jane Doe for failure to prosecute.
B. Failure to Train Claims
Defendants argue Plaintiff has not established Sheriff Kast's personal involvement in any constitutional violation, and that Plaintiff has failed to properly support any failure to train claim raised in his response papers against Kast or against any unnamed municipality.
1. Personal or Supervisory Liability
Liability under Section 1983 arises only upon a showing of personal participation by the defendant in the alleged constitutional deprivation. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). To the extent Plaintiff seeks to hold Sheriff Kast liable for the alleged wrongful handling of legal mail based solely on his supervisory role at Marion County Jail, he cannot do so. Monell v. New York City Dep't. of Social Services, 436 U.S. 658, 691-94 (1978) (no respondeat superior liability in 1983 claims). Supervisory liability exists only if the supervisor is personally involved in the constitutional deprivation or if there is “a sufficient causal connection between the supervisor's wrongful conduct and the [alleged] constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). A supervisor's failure to train subordinates may give rise to individual liability under § 1983 where the failure to train amounts to deliberate indifference to the rights of persons with whom the subordinates come into contact. See Canell v. Lightner, 143 F.3d 1210, 1213-14 (9th Cir. 1998). A plaintiff must allege that (1) the subordinate's training was inadequate; (2) the inadequate training was a deliberate choice on the part of the supervisor; and (3) the inadequate training caused a constitutional violation. Id. at 1214; see also City of Canton v. Harris, 489 U.S. 378, 391 (1989); Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002).
The only allegation against Kast is that he failed “to see to it that all policies and procedures are followed,” Am. Compl. at 3, and that he “failed to train employees that hand[le] mail.” Pl.'s Resp. in Opp'n at 6. Plaintiff provides no evidence that Kast's alleged failure to train amounts to deliberate indifference of Plaintiff's rights. His conclusory allegations against Kast are insufficient to establish his personal or supervisory liability as to any constitutional violation. Accordingly, Defendants' motion for summary judgment should be granted as to claims asserted against Kast.
2. Municipal Liability
Any liberally construed municipal liability claim based on an alleged failure to train also fails because Plaintiff has not named or served a proper municipal defendant, and he offers only conclusory allegations in support. A plaintiff may establish municipal, or Monell, liability by demonstrating that the alleged constitutional violation was caused by a failure to adequately train municipal employees that then amounts to deliberate indifference to an individual's constitutional rights. See City of Canton, Ohio, 489 U.S. at 388-91; Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 846 (9th Cir. 2016). The need for more or different training must be “so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.” City of Canton, Ohio, 489 U.S. at 390. To prove deliberate indifference, a plaintiff “usually must show a pattern of similar constitutional violations” caused by the municipality's inadequate training. Connick v. Thompson, 563 U.S. 51, 62 (2011).
Plaintiff cites to Policy 3405 and states that the Marion County Sheriff's Office - which he has not named as a defendant in this action - failed to properly train employees to handle legal mail. See Pl's Resp. in Opp'n at 6. The Court should find that, even if Plaintiff had named a proper defendant, Plaintiff's conclusory allegations fail to adequately allege a Monell claim based on a failure to train. Defendants' motion for summary judgment should be granted as to Plaintiff's failure to train claims.
C. First Amendment Claim
Both parties argue they are entitled to summary judgment as a matter of law as to Plaintiff's claim that Griffith improperly opened two pieces of legal mail outside of his presence. Plaintiff argues that Griffith's wrongful handling of the two pieces of legal mail, alone, constitutes a violation of his First Amendment rights. Pl.'s Mot. for Summ. J. at 6. He asserts that he is “not required to allege a long standing practices [sic] of violating First Amendment rights,” or “show any actual injury beyond the Free Speech violation itself.” Id. Defendants argue that Plaintiff has not established that Griffith acted deliberately to violate Plaintiff's First Amendment rights, and that Plaintiff's allegations of an isolated episode of erroneously opening two pieces of Plaintiff's legal mail amounts to negligent conduct, which is not actionable under Section 1983. Defs.' Resp. in Opp'n at 9; Defs.' Mot. for Summ. J. at 8.
Individuals in custody “have a protected First Amendment interest in having properly marked legal mail opened only in their presence.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017). To state a constitutional claim for legal mail that was opened and read outside an AIC's presence, a plaintiff must allege that the mail was from an attorney and that the mail “was properly marked as ‘legal mail.'” Id. Additionally, a plaintiff must allege that a prison official deliberately opened the AIC's legal mail. Id. at 1218 (“An allegation that prison officials opened a prisoner's legal mail, without an allegation that the mail was deliberately and not negligently opened, is not sufficient to state a cause of action under § 1983.”) (Bybee, J., concurring). Isolated instances of inadvertent opening of legal mail outside an AIC's presence, while not to be condoned, are not actionable as constitutional violations. Camposeco v. Boudreaux, No. 1:19-CV-01330-AWI-BAM (PC), 2021 WL 4710801, at *8 (E.D. Cal. Oct. 8, 2021), report and recommendation adopted, No. 1:19-CV-01330-AWI-BAM (PC), 2021 WL 5330955 (E.D. Cal. Nov. 16, 2021) (citing Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989)).
1. Properly Marked Legal Mail
While Plaintiff has not alleged that he was represented by either attorney, Plaintiff states that the mail sent to and from the attorneys were “regarding counsel” or “seeking counsel” to represent him. Am. Compl. at 4-5; Pl's Mot. for Summ. J. at 4. He has also presented evidence that the envelopes, which are attached to his submissions, were each marked “Legal Mail” on the front. Hoge Decl. at 11-12. Each envelope plainly includes the name of the attorney and, with respect to the piece of outgoing mail returned to sender, the full name of the law office. See id. Mail from an attorney, or prospective attorney, constitutes “legal mail” and is entitled to greater protection than other mail. Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974); Hayes, 849 F.3d at 1211. The Court should find that Plaintiff's mail was addressed to or sent from a prospective attorney and properly marked as legal mail.
2. Isolated Instance of Opening Legal Mail
Plaintiff has presented evidence that Griffith opened two pieces of legal mail from prospective attorneys outside of Plaintiff's presence, in violation of the Jail's policy for handling legal mail. Pl.'s Mot. for Summ. J. at 4-5; Hoge Decl. at 2; Pl.'s Resp. in Opp'n at 2-3. Defendants have presented evidence that Griffith erroneously opened the two pieces of legal mail in a single, isolated incident - the first piece because he mistakenly believed that all mail returned to sender was to be opened as normal and the second piece because the “Legal Mail” indication was in a different place than he was accustomed to seeing it- and they argue that Plaintiff has not alleged facts showing Griffith intended to violate Plaintiff's rights. Def.s' Mot. for Summ. J. at 8.
The Court notes that the “Legal Mail” indication appears under Plaintiff's name on each envelope, but that Plaintiff's name appears in the return or sender location in the top left corner of one envelope and in the recipient location in the center of the other envelope. See Hoge Decl. at 11-12.
A plaintiff must show that the opening of “legal mail” was due to more than negligence to state a constitutional violation. Cornel Jackson v. Jason Quick, et. al, No. 1:19-CV-01591- JLT-EPG (PC), 2022 WL 7688183, at *7 (E.D. Cal. Oct. 13, 2022); Floyd v. Ada Cnty., No. 1:20-CV-00347-BLW, 2020 WL 6047758, at *6 (D. Idaho Oct. 13, 2020) (citing Hayes, 849 F.3d at 1212, 1218, and Kingsley v. Hendrickson, 576 U.S. 389, 396 (2015)). A single instance of opening legal mail outside an individual in custody's presence, “without allegations showing prison staff acted deliberately as opposed to merely inadvertently,” is insufficient to state a constitutional violation. Ricalls v. Hinton, No. CV 20-3045-PA (KK), 2020 WL 2128648, at *5, n. 4 (C.D. Cal. May 5, 2020)) (collecting cases). Because Plaintiff has not alleged or established facts that Griffith opened the two pieces of legal mail deliberately to violate Plaintiff's constitutional rights, the Court should find that this isolated incident of erroneously opening two pieces of legal mail amounts to negligent, rather than intentional, conduct. Cornel Jackson v. Jason Quick, et. al, No. 1:19-CV-01591- JLT- EPG (PC), 2022 WL 7688183, at *7 (E.D. Cal. Oct. 13, 2022) (plaintiff must show that the opening of “Legal Mail” was due to more than negligence to state a constitutional violation). Accordingly, Defendants' Motion for Summary Judgment should be granted.
Defendants argue Griffith would otherwise be entitled to qualified immunity. Defs.' Mot. for Summ. J. at 8-11. Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The first inquiry is whether the facts show the defendant's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). The second inquiry asks whether the constitutional right in question was “clearly established” at the time the conduct at issue occurred. Id. Although courts may apply these questions in order, they have the discretion to end the inquiry if either question is answered affirmatively. Pearson, 555 U.S. at 236. Because Plaintiff has failed to establish any statutory or constitutional violation, i.e., the first prong of the test, it is unnecessary for the Court to reach the question of whether Griffith is entitled to qualified immunity.
CONCLUSION
Defendants' Motion for Summary Judgment, ECF No. 50, should be GRANTED and
Plaintiff's Motion for Summary Judgment, ECF No. 45, should be DENIED. A judgment of dismissal should be entered.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
IT IS SO ORDERED