Cate
Filed
11/27/12 Jones v. Cate CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
RODNEY WAYNE JONES,
Plaintiff and Appellant,
v.
MATTHEW CATE, et al.,
Defendant and Respondent.
F063338
(Super.
Ct. No. 10C0256)
APPEAL from
a judgment of the Superior Court of
County. Donna L. Tarter, Judge.
Rodney
Wayne Jones, in pro. per., for Plaintiff and Appellant.
Kamala D.
Harris, Attorney General, Thomas S. Patterson and Michael J. Quinn, Deputy
Attorneys General, for Defendant and Appellant.
-ooOoo-
Plaintiff Rodney Wayne Jones, a
prisoner in the Security Housing Unit (SHU) in the state prison at Corcoran,
alleges that prison guards took and destroyed his personal and legal
property. Plaintiff filed a grievance
and pursued it through the four levels of administrative
review. Those reviews found, in
essence, that all legal materials had been returned to plaintiff and the items
of personal property were excess property disposed of in accordance with prison
regulations.
Plaintiff filed this lawsuit,
alleging that prison officials violated (1) his due process rights, (2) his
right to equal protection, and (3) his First Amendment rights to (a) be free
from retaliatory action and (b) access to the courts. The defendants demurred to these claims. The trial court sustained the demurrer
without leave to amend and plaintiff appealed.
We conclude plaintiff’s allegations
do not state an equal protection violation because indigency is not a suspect
classification and the regulations for the disposition of excess inmate
property satisfy the rational basis test.
Also, plaintiff’s allegations do not state a claim for the deprivation
of property without due process of law because California law provides
plaintiff with an adequate post-deprivation remedy.
We further conclude plaintiff’s
allegations that his legal property was destroyed in retaliation for his filing
a grievance states a claim for retaliation in violation of his First Amendment
rights. Also, we direct the trial court
to grant plaintiff leave to amend his access-to-court claim to set forth
factual allegations satisfying the actual
a claim.
We therefore reverse the judgment.
FACTS
Because we
are reviewing an order sustaining a demurrer, we are required to accept as true
the allegations of fact set forth in plaintiff’s complaint. (
(2007) 41 Cal.4th 859, 865.) Therefore,
the facts set forth in this opinion are taken from the allegations in
plaintiff’s pleadings and the attached exhibits.
Plaintiff Rodney Wayne Jones is an
inmate in the custody of the California Department of Corrections and
Rehabilitation (the Department). During the
time relevant to this lawsuit, plaintiff was incarcerated at the state prison
located in Corcoran, California.
The defendants are Correctional
Officers E. Banuelos and G. Rodriguez; Correctional Sergeant V. Rangel;
Associate Warden T. Norton; Chief Deputy Warden R. Davis; Chief of Inmate
Appeals N. Grannis; Warden Derral G. Adams; and the Secretary of the
Department, Matthew Cate.
Between June 2006 and January 2009,
plaintiff was transferred from prison to court on at least 10 different
occasions to attend proceedings in Imperial County Superior Court.
On January 16, 2009, plaintiff was
returned to the SHU at the Corcoran prison after his final court appearance at
the Imperial County Superior Court.
On January 30, 2009, while plaintiff
was waiting in the medical clinic, most of his personal and legal property was
delivered to his assigned cell. As
plaintiff was being examined by a doctor, a property officer approached
plaintiff and requested plaintiff to sign a property receipt if he wanted his
property. Plaintiff reluctantly signed
the receipt on form CDCR 1083. Upon
return to his cell, plaintiff noticed items were missing, including legal
documents, articles, exhibits, notes and legal papers pertaining to his court
cases.
On February 3, 2009, plaintiff was
reissued his personal television and other miscellaneous items, but additional
personal items belonging to plaintiff again were confiscated by SHU Property
Officer E. Banuelos. Plaintiff signed a
receipt on another form CDCR 1083.
On February 17, 2009, plaintiff
initiated a written grievance using a CDC 602 appeal form, which he alleges was
given Log No. CSPC-6-09-01263 (CDC 602 Appeal).
In the form, Plaintiff requested the delivery of his remaining personal
and legal property “ASAP as [his] court cases are still active with a court
deadline of April 10, 2009.†(Some
capitalization omitted.)
On February 26, 2009, Officer G.
Rodriguez finished an informal level review of the grievance, completed section
C of the CDC 602 Appeal, and returned it to plaintiff. The response in section C stated: “This appeal is partially granted. Your property was issued to you on two
different days. See attached CDC
1083. All legal work was issued to
you. Officer E. Banuelos inventoried
you[r] property on two different days.â€
(Some capitalization omitted.)
Despite the statement that the appeal was partially granted, no
additional personal or legal property was returned to plaintiff.
On February 28, 2009, Officer
Rodriguez provided plaintiff with written notice that his confiscated property
would be disposed of if he failed to comply with the notice. That very same
day, the confiscated personal and legal property belonging to plaintiff was
destroyed. The headings on the notice
form were “4B SHU MAIL-OUT DISPOSAL NOTICE†and “CDC 128-B INFORMATIVE
CHRONO.†The notice stated that (1)
plaintiff had mail-out property at the mail-out room; (2) plaintiff chose to
mail out the property, but his trust account had insufficient funds to cover
the postage; and (3) plaintiff had 30 days from January 30, 2009, to provide
the necessary funds or his property would be disposed of pursuant to California
Code of Regulations, title 15, section 3191, subdivision (c) (CCR 3191(c)). Plaintiff alleges that his property was
destroyed because of his indigent status and in retaliation for his filing the
CDC 602 Appeal.
On March
30, 2009, prior to receiving notice that his personal and legal property
already had been destroyed, plaintiff completed section D of the CDC 602 Appeal
and resubmitted it for first level review.
In the section of the CDC 602 Appeal concerning formal review, plaintiff
stated that, as of March 30, 2009, all legal property had not been issued to
him.
On April
24, 2009, plaintiff was interviewed by Sergeant V. Rangel by telephone. After the interview, Sergeant V. Rangel and
Associate Warden T. Norton issued a first level response denying plaintiff’s
appeal. The written first level
response dated April 24, 2009, indicated that the denial was based in part on
Officer E. Banuelos’s statement that he processed plaintiff’s property and
issued plaintiff all of his legal material and allowable SHU property. The written first level response also stated
that disposal of plaintiff’s property was in compliance with applicable rules
because plaintiff refused to select a method to dispose of his excess
property.
Plaintiff
was dissatisfied with the first level response.
On May 11, 2009, plaintiff completed section F of the CDC 602 Appeal and
requested second level review.
Plaintiff alleges by the time he requested the second level review he
had received notice that his personal and legal property already had been
destroyed. Plaintiff’s entry in section
F of the CDC 602 Appeal stated that prison staff clearly violated his equal
protection and due process rights by (1) discriminating against him by refusing
to mail his property home due to insufficient funds and (2) disposing of his
property prior to the full or partial completion of his appeal.
On June 16,
2009, Chief Deputy Warden R. Davis issued a written second level appeal
response denying plaintiff’s appeal. The
written response addressed plaintiff’s position that legal property had not
been returned to him: “Per staff, all
your legal material has been issued to you.â€
The written response also stated: “[Y]ou refused to sign or designate
the method of disposition on the Trust Account Withdrawal From (CDC 193). Therefore, staff disposed of the property
pursuant to policy and procedure.â€
On June 29,
2009, plaintiff completed section H of the CDC 602 Appeal and requested
director’s level review. Plaintiff
stated that although the wrongful disposal of his personal and legal property
appeared to be final and irreplaceable, he continued to seek specific recovery
of the property or its value in accordance with the Department operations
manual, article 43, section 54030.6.
On July 23,
2009, plaintiff completed and submitted a government claim form to the
California Victim Compensation and Government Claims Board in Sacramento. Plaintiff stated he was injured by state
prison employees’ illegal and intentional disposal of his personal and legal
property and requested compensatory damages of $11,707.30 and punitive damages
of $25,000.00.
On
September 14, 2009, plaintiff’s CDC 602 Appeal was denied by Chief N.
Grannis. The written denial stated that
the “decision exhausts the administrative remedy available to [plaintiff]
within [the Department].â€
name="_ftnref1" title="">[1]
Later in
September 2009, the California Victim Compensation and Government Claims Board
rejected plaintiff’s claim and informed plaintiff of its action by letter.
PROCEEDINGS
On June 23, 2010, plaintiff filed a
complaint for property damage using Judicial Council Form PLD-PI-001 (rev. Jan.
1, 2007). In item 10 of the form,
plaintiff checked the box indicating that he had attached causes of action for
“Intentional Tort.†In item 11,
plaintiff checked the box that alleged he had suffered “loss of use of
property.†Attached to the form pleading
were an 11-page hand-written “State Tort Complaint†and eight exhibits labeled
A through H. The exhibits were various
documents relating to the prison’s handling of plaintiff’s property, including
the CDC 602 Appeal and the responses generated by the different levels of
review.
On May 6, 2011, plaintiff filed a
“First Amended State Tort Complaint†(FAC).
The FAC repeated many of the allegations in the original complaint,
attached the same eight exhibits, and included counts for (1) due process violations,
(2) an equal protection violation, and (3) First Amendment violations
concerning the right to access the courts and retaliation. Plaintiff requested an injunction stopping
the Department’s illegal and discriminatory practices of disposing of indigent
inmates’ personal and legal property, compensatory damages of $11,707.30, and
punitive damages of $25,000.00.
Defendants Banuelos, Rodriguez,
Rangel, Davis and Adams filed a demurrer to the FAC. On June 30, 2011, the trial court sustained
their demurrer without leave to amend, concluding that the pleading did not
allege facts sufficient to state a cause of action under any legal theory.
On August 1, 2011, plaintiff filed
a notice of appeal that stated he was appealing from the June 30, 2011, judgment
of dismissal after an order sustaining a demurrer.
At a time that cannot be determined
from the record, defendants Norton and Cate were served with the FAC. They subsequently filed a demurrer. On August 17, 2011, the trial court sustained
their demurrer without leave to amend.
Among other things, the court concluded that (1) the allegations
regarding Associate Warden Norton’s involvement in the inmate grievance
procedures were insufficient to state a due process violation against him and
(2) the allegations that Secretary Cate knew of his subordinate’s alleged
constitutional violations, without specific allegations of personal
involvement, did not state a claim for supervisory liability against him.
Plaintiff did not file a notice of
appeal concerning the second demurrer and the related August 17, 2011,
order. Therefore, the only matter
subject to review in this appeal is the order sustaining the demurrer of
defendants Banuelos, Rodriguez, Rangel, Davis and Adams.
On November 2, 2011, the trial
court filed a judgment in favor of all seven demurring defendants.
DISCUSSION
I. APPEALABLE
ORDER OR JUDGMENT
Plaintiff’s
notice of appeal states that he appeals from the June 30, 2011, judgment of
dismissal after an order sustaining a demurrer.
No such judgment is included in the appellate record. Instead, the record contains a June 30, 2011,
order sustaining the demurrer of defendants Banuelos, Rodriguez, Rangel, Davis
and Adams to the FAC. Because orders
sustaining demurrers are not appealable (Zipperer
v. County of Santa Clara (2005) 133 Cal.App.4th 1013, 1019), it appears
that plaintiff has attempted to appeal from a nonappealable order.
To avoid
delay in handling this appeal, we (1) directed the superior court clerk to
augment the appellate record with the judgment that was entered on November 2,
2011, and (2) will treat plaintiff’s premature notice of appeal as applying to
that judgment. (Cal. Rules of Court,
rule 8.104(d)(2); State Comp. Ins. Fund
v. WallDesign Inc. (2011) 199 Cal.App.4th 1525, 1529 [court augmented
record with judgment and treated notice of appeal as having been filed
immediately after the judgment].)
II. STANDARD
OF REVIEW APPLICABLE TO DEMURRER
Our standard of review of an order sustaining a demurrer on the ground
that the complaint, here the FAC, fails to state facts sufficient to constitute
a cause of action is well settled. We
independently review the ruling on demurrer and determine de novo whether the
complaint alleges facts sufficient to state a cause of action. (McCall
v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.)
When conducting this de novo
review, “[w]e give the complaint a reasonable interpretation, reading it as a
whole and its parts in their context.
[Citation.] Further, we treat the
demurrer as admitting all material facts properly pleaded, but do not assume
the truth of contentions, deductions or conclusions of law. [Citations.]â€
(City of Dinuba v. County of
Tulare, supra, 41 Cal.4th 859,
865.) Our consideration of facts also
includes “those evidentiary facts found in recitals of exhibits attached to a
complaint.†(Satten v. Webb (2002) 99 Cal.App.4th 365, 375.)
When a demurrer is properly
sustained on the ground that the complaint fails to state facts sufficient to
constitute a cause of action, and leave to amend is denied, “we decide whether
there is a reasonable possibility that the defect can be cured by amendment: if
it can be, the trial court has abused its discretion and we reverse; if not,
there has been no abuse of discretion and we affirm. [Citations.]
The burden of proving such reasonable possibility is squarely on the
plaintiff. [Citation.]†(Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.)
III. EQUAL
PROTECTION CLAIM
Plaintiff
alleged that prison officials refused to mail his property home due to
insufficient funds. He contends that CCR
3191(c), which was the basis for the official’s refusal, is unconstitutional
because it violated the equal protection clause by providing discriminatory and
unequal treatment against indigent prisoners who are situated similarly to
nonindigent prisoners.
A. General
Principles
Both the federal and state
constitutions include equal protection guarantees. “No State shall … deny to any person within
its jurisdiction the equal protection of the laws.†(U.S. Const., 14th Amend. § 1.) Similarly, article I, section 7, subdivision
(a) of the California Constitution provides:
“A person may not be … denied equal protection of the laws .…†The equal protection clause has been
summarized as “essentially a direction that all persons similarly situated
should be treated alike.†(
The
elements of an equal protection claim have been addressed by the California
Supreme Court:
“‘The first prerequisite to a meritorious claim under
the equal protection clause is a showing that the state has adopted a
classification that affects two or more similarly
situated groups in an unequal manner.’
[Citations.] This initial inquiry
is not whether persons are similarly situated for all purposes, but ‘whether
they are similarly situated for purposes of the law challenged.’ [Citation.]â€
(Cooley v. Superior Court
(2002) 29 Cal.4th 228, 253.)
When a
showing has been made that two similarly situated groups are treated
disparately, the next element of a meritorious equal protection claim concerns
whether the government had a sufficient reason for distinguishing between the
two groups. (In re Brian J. (2007) 150 Cal.App.4th 97, 125.) Whether the government had a sufficient
reason to subject the groups to different treatment is tested using one of
three different standards.
First, where a statute or
regulation makes distinctions involving inherently suspect classifications or
fundamental rights, it is subject to strict
scrutiny and may be upheld only if the government establishes the
distinction is necessary to achieve a compelling state interest. (Kasler
v. Lockyer (2000) 23 Cal.4th 472, 480.)
Second, distinctions based on gender are subject to an
v. Hofsheier (2006) 37 Cal.4th 1185, 1200.)
Third and most commonly, the challenged distinctions must bear a
rational relationship to a legitimate state purpose. (Ibid.) Stated otherwise, this latter standard
requires the statute or regulation to be upheld if there is any reasonably
conceivable set of facts that provides a rational
basis for the classification. (
508 U.S. 307, 313.)
Under the
rational basis test, the party challenging the statute or regulation must
demonstrate that the difference in treatment is unrelated to the achievement of
any legitimate government purpose. (
Thus, application of the rational basis test involves a strong
presumption favoring the validity of the challenged statute or regulation. (Ibid.)
B. Application
of Principles
For
purposes of analyzing plaintiff’s equal protection claim, we will assume that,
among prisoners with excess property they wish to mail home, prisoners with the
money to pay for postage are similarly
situated to those lacking funds to pay for postage. We will further assume that the regulation
authorizing the disposal of the excess property of prisoners who cannot pay for
postage provides for disparate treatment
of the two groups of similarly situated prisoners. Consequently, the critical questions for our
equal protection analysis concern (1) which standard—strict scrutiny,
intermediate review or the rational basis test—applies to the disparate
treatment of the two groups and (2) whether the government’s reasons for
distinguishing between the two groups were sufficient under the applicable
standard.
Basis Test Applies
In
F.3d 1176, a prisoner challenged a federal statute that denied in forma
pauperis status to prisoners who had three or more civil cases dismissed as
frivolous. The prisoner contended the
statute was unconstitutional on equal protection grounds because it treated
indigent prisoners differently than wealthy prisoners. (Id.
at p. 1178.) In addressing what level of
scrutiny to apply to the classification created by the statute, the court
stated:
“Initially, we note that indigent prisoners are not a
suspect class. See Harris [v. McRae (1980)] 448 U.S. [297,] 323 (indigent persons are
not a suspect class); Webber v. Crabtree,
158 F.3d 460, 461 (9th Cir. 1998) (prisoners are not a suspect class);
Cir. 1998) (indigent prisoners are not a suspect class).†(Rodriguez
v. Cook, supra, 169 F.3d at p.
1179.)
We will
follow this precedent and conclude that indigent prisoners are not a suspect
class. (See Neil S. v. Mary L. (2011) 199 Cal.App.4th 240, 254 [suspect
classifications include those based on race, nationality or alienage].) In addition, we conclude that a prisoner’s
right to send excess property to persons outside the prison is not a
fundamental right. (See
(2000) 80 Cal.App.4th 262, 272 [fundamental rights include personal liberty,
right to privacy, right to procreation, right to vote, right to run for office,
and right to a public education].)
Accordingly, we further conclude that the rational basis test applies to
the provisions of CCR 3191(c) that address the handling of a prisoner’s excess
property.
2. The Regulation Is Rational
Next, we
will consider whether the government had a sufficient reason—that is, one that
satisfies the rational basis test—for allowing prisoners with sufficient funds
to pay for postage to mail their excess property to third parties outside the
prison while prisoners lacking sufficient funds cannot mail out their
property.
Here,
defendants argue that the State of California had a legitimate and rational
interest in conserving its limited resources, and on that basis chose not to
provide postage to indigent inmates who are required to either mail out their
excess property or have it disposed of by other means. (See Mathews
v. Eldridge (1976) 424 U.S. 319, 348 [government’s interest in conserving
scarce fiscal and administrative resources is a factor to be weighed in
determining whether due process requires a particular procedural
safeguard].)
Plaintiff,
as the party challenging the regulation, must demonstrate that the difference
in treatment is unrelated to the achievement of any legitimate government
purpose. (Kasler v. Lockyer, supra,
23 Cal.4th at p. 480.) Plaintiff has not
made the necessary demonstration in this case.
Instead, defendants have shown that the State of California has a
legitimate interest in preserving resources and CCR 3191(c) would save
resources that otherwise would have been expended on (1) providing postage to
indigent prisoners to allow them to mail out excess property or (2) storing
that property for the prisoner.
Therefore, we conclude the
treatment of indigent prisoners under the property disposition provisions set
forth in CCR 3191(c) does not violate
the equal protection clause in the United States Constitution or the California
Constitution.
name="_ftnref2" title="">[2]
IV. DUE
PROCESS CLAIM
The first
footnote in plaintiff’s opening brief asserts that he is not claiming his due
process rights were violated by the seizure
of his personal and legal property.
Instead, he explicitly states that his due process claim concerns “the
disposal of [his] personal and legal property prior to adequate notice and/or
an opportunity to be heard at a meaningful time and in a meaningful manner.â€
A. General
Principles
Both the federal and state
constitutions include a due process clause.
Section 1 of the Fourteenth Amendment to the United States Constitution
provides that no state shall “deprive any person of … property, without due
process of law .…†Article I,
section 7, subdivision (a) of the California Constitution states in relevant
part: “A person may not be deprived of …
property without due process of law .…â€
These requirements for procedural due process impose constraints on
governmental decisions that deprive individuals of interests that qualify as
“property†for purposes of the due process clauses. (Mathews
v. Eldridge, supra, 424 U.S. at
p. 332.)
As a basic proposition, every
governmental deprivation of an individual’s “property†within the purview of
the due process clause requires some form of notice and a hearing. (Beaudreau
v. Superior Court (1975) 14 Cal.3d 448, 458.) The requirement for a hearing means “the
opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ [Citations.]â€
(Mathews v. Eldridge,
The process that is due prisoners
who claim to have been deprived of property has been addressed by the United
States Supreme Court. In
state prison inmate sued prison officials after mail-order hobby materials were
lost when the prison’s normal procedures for receipt of mail packages were not
followed. The court observed that
prisoners who suffered a tortious loss of property were provided with
post-deprivation remedies under Nebraska’s tort claims law and concluded these
post-deprivation procedures and remedies were adequate to satisfy due
process. (Id. at p. 543.) In
to cases in which the deprivation of property resulted from intentional
action.
The decision in
Appeals to consider whether California’s Government Claims Act (Gov. Code,
§ 810 et seq.)
title="">[4] provided adequate post-deprivation remedies
and, thus, satisfied the requirements of due process. (Barnett
v. Centoni (9th Cir. 1994) 31 F.3d 813, 816-817.) The court concluded those remedies were
adequate. (Ibid.; Jacobs v. Director of
California Dept. of Corrections (9th Cir. 2012) 470 Fed.Appx. 693
[allegations of unauthorized deductions from state prisoner’s trust account did
not state a claim for violation of prisoner’s due process rights because
California law provided an adequate post-deprivation remedy].)
B. Application
of Principles
The Ninth Circuit cases establish
that California’s Government Claims Act provides adequate post-deprivation
remedies to inmates who allege prison officials have wrongfully taken their
property. Based on those cases, we
reject plaintiff’s argument that the due process requirement for an “opportunity
to be heard ‘at a meaningful time and in a meaningful manner’†(
he and other prisoners be given a hearing before
prison officials destroy or otherwise dispose of their property pursuant to CCR
3191(c). The post-deprivation procedures
and remedies provided pursuant to the Department’s administrative appeal
process and the Government Claims Act are sufficient to satisfy the
requirements of due process.
Therefore, we conclude that plaintiff
has failed to state a cause of action based on the legal theory that the
confiscation and destruction of his property violated his due process rights.
V. RETALIATION
CLAIM
A. Basic
Principles
A prisoner’s First Amendment rights
include the right to file grievances and pursue civil rights litigation in the
courts. (Rhodes v. Robinson (9th Cir. 2005) 408 F.3d 559, 567.) Prison authorities may not penalize or
retaliate against an inmate for exercising these rights. (Bradley
v. Hall (9th Cir. 1995) 64 F.3d 1276, 1279.) A First Amendment retaliation claim consists
of the following five basic elements:
(1) A state actor took some adverse action against an inmate (2) because
of (3) that prisoner’s protected conduct, and such action (4) chilled
the inmate’s exercise of his First Amendment rights, and (5) the action did not
reasonably advance a legitimate correctional goal. (Rhodes
v. Robinson, supra, 408 F.3d at
pp. 567-568.)
As to the first through third
elements, the plaintiff has the burden of showing that his exercise of his
constitutionally protected rights was a substantial or motivating factor behind
the defendants’ conduct. (
Cir. 1989) 874 F.2d 1310, 1314.) The
fourth element, chilling effect, might be satisfied by an allegation that
plaintiff suffered harm. (
B. Plaintiff’s
Allegations
The FAC’s introduction alleges that
“Defendants E. Banuelos and G. Rodriguez … intentionally, illegally, and
maliciously confiscated and disposed of Plaintiff’s … legal
property [while] motivated by a retaliatory intent .…†Footnote 3 of the FAC alleges that a “total
of 128 personal and legal items were collectively confiscated and destroyed by
Defendants Banuelos and Rodriguez .…â€
These allegations identify action by a state employee that is adverse to
the inmate and, thus, satisfy that element of a retaliation claim.
The element concerning protected
conduct by the prisoner is fulfilled by plaintiff’s allegation that on February
17, 2009, plaintiff initiated the CDC 602 Appeal. The grievance included a request for the
return of his remaining legal property.
Our analysis of the element
requiring a causal connection between the inmate’s protected conduct and the
prisoner officials’ adverse action against the inmate begins by noting that the
sequence of pertinent events starts with the January 30, 2009, failure to
return legal documents and papers to plaintiff.
After plaintiff received additional property in early February, he
initiated a grievance by submitting the CDC 602 Appeal on February 17,
2009. Officer Rodriguez conducted the
informal review and, on February 26,
2009, set forth his response in section C of the CDC 602 Appeal. Officer Rodriguez stated that the “appeal is
partially granted,†though it is uncertain what this meant. He rejected plaintiff’s allegation of missing
legal papers by stating that all legal work had been issued to plaintiff. Plaintiff alleges that two days later,
on February 28, 2009, Officer Rodriguez
disposed of his legal property “undoubtedly [in] retaliation for filing
said CDC 602 Appeal (i.e., constitutionally-protected conduct) ….â€
C. Trial
Court’s Ruling
The trial court determined
plaintiff failed to state an actionable retaliation claim because the adverse
action preceded the alleged protected activity and, as a result, plaintiff
could not show that (1) his protected activity was a substantial factor in
motivating the adverse action or (2) the adverse action chilled the exercise of
his First Amendment rights. In addition,
the court stated that the “enforcement of the property regulations
presumptively advances a legitimate correctional interest.â€
Defendant’s brief presents the
following argument to support the trial court’s determinations:
“Here, a review of the sequence
of events in the case establishes that Jones’s ‘protected activity’ could not
have motivated the adverse action. Jones
alleges that the disposal of his property on February 28, 2009, amounted to
retaliation because he filed an inmate grievance on February 17, 2009. …
However, Jones’s property records establish that the removal of the
excess property occurred on January 30, 2009, at which time plaintiff was given
notice of the confiscation as required by the Code of Regulations. …
Jones was expressly notified that if he failed to select a method of
disposing his excess property, or if he did not maintain a positive trust
account balance, prison officials were required to determine the method of
disposing of the property.â€
In defendants’ view, because the
process of disposing of the confiscated property began in January 2009, well
before plaintiff filed his grievance on February 17, 2009, the alleged adverse
action occurred before the protected conduct and, therefore, the causal
connection necessary for a retaliation claim cannot be stated.
D. Analysis
of Claim
Our analysis will consider the
destruction of plaintiff’s legal materials as the retaliatory action taken
against him and will not be concerned with the destruction of his personal
property.
focus.
1. Factual
Dispute Over Destruction of Legal Materials
Plaintiff’s allegation that
Officers Banuelos and Rodriguez destroyed his legal property stands in
contradiction to the position taken by the prison officials at each level of
review of the CDC 602 Appeal. Starting
with Officer Rodriguez’s written response after his informal review and
continuing through the director’s decision, prison officials took the position
that all of plaintiff’s legal materials had been returned to him. The director’s level appeal decision dated
September 14, 2009, found: “The CDC Form
1083 reflects that [plaintiff] was issued all his legal material.†Defendants’ position that all legal items
were returned to plaintiff necessarily implies that when defendants disposed of
plaintiff’s excess personal property, no legal materials were destroyed.
In the procedural context of a
demurrer, when the reviewing court is confronted with different versions of
what occurred, it presumes the truth of the facts alleged in the plaintiff’s
pleadings. (City of Dinuba v. County of
Tulare, supra, 41 Cal.4th 859,
865 [“we treat the demurrer as admitting all material facts properly
pleadedâ€].) Defendants—apparently in an
attempt to counter this presumption—argue that plaintiff’s “own records
indicate that his legal property was returned to him ….†The document to which they cite is the
receipt on the CDCR 1083 form dated January 30, 2009, which bears plaintiff’s
signature. Plaintiff referred to this
form in his CDC 602 Appeal where he states he signed the form reluctantly while
he was being examined by a doctor. Also,
the FAC alleges that prison “staff dictate that inmates sign the CDC 1083 Form
prior to receiving or inventorying their property .…†These allegations support the inference that
plaintiff was not able to see the materials actually delivered to his cell
before he signed the form and, therefore, he did not freely consent to the statements
made in the receipt. (See Civ. Code, §§
1565 [consent must be free] & 1567 [freedom of consent].) The inference that plaintiff signed the
receipt before seeing his property is consistent with his statement that, upon
return to his cell, he noticed items were missing, including legal documents,
articles, exhibits, notes and legal papers pertaining to his court cases.
In short, the statement in the receipt signed by plaintiff that all
legal material had been returned to plaintiff is not necessarily binding on
plaintiff and does not preclude him from alleging the receipt is inaccurate and
explaining why he should not be bound by its terms. Therefore, for purposes of reviewing the
demurrer brought in this case, we will presume the truth of the allegation that
Officers Banuelos and Rodriguez destroyed legal materials belonging to
plaintiff on February 28, 2009.
of Protected Conduct and Retaliatory Act
Paragraph 9 of the FAC alleged
plaintiff’s constitutionally protected conduct was the filing of the CDC 602
Appeal. It also alleged that on
February 28, 2009, Officer Rodriguez, in retaliation for filing the CDC 602
Appeal, disposed of legal property belonging to plaintiff. Thus, as alleged by plaintiff, the
destruction of his legal materials clearly occurred after the CDC 602 Appeal
was initiated by plaintiff on February 17, 2009.
Defendants’ argument that the
process that resulted in the destruction of plaintiff’s legal property began on
January 30, 2009, is flawed because it assumes that the process, once started,
inevitably led to the destruction of plaintiff’s legal materials. We reject this assumption of
inevitability. When Officer Rodriguez
conducted the informal review of the CDC 602 Appeal, he could have (1)
identified the legal materials included in the property Officer Banuelos
confiscated from plaintiff and (2) directed that those items be returned to
plaintiff. Nothing in the appellate
record suggests that Officer Rodriguez was compelled to find there were no
legal materials among the confiscated items and then destroy those legal
materials two days after he finished the informal review. In other words, what happened before Officer
Rodriguez began the informal review did not predetermine the outcome of that
review or require the destruction of plaintiff’s legal materials on February
28, 2009.
In summary, plaintiff’s allegations
clearly describe a retaliatory act—the destruction of plaintiff’s legal
property on February 28, 2009—that occurred after plaintiff’s protected
conduct—namely, the filing of the CDC 602 Appeal on February 17, 2009. Therefore, plaintiff has alleged facts that
satisfy the causal connection element of the retaliation claim.
Effect
Plaintiff did not allege that the
allegedly retaliatory action chilled the exercise of his First Amendment
rights. Instead, he alleged that the
missing legal items “severely prejudiced Plaintiff’s right to a fair and
impartial discipline/rules violation report hearing, and ultimately, further
access to the courts.â€
In their appellate briefs,
defendants do not argue that plaintiff’s allegations are insufficient to
satisfy the element of a First Amendment retaliation claim that the adverse
action taken against the prisoner “chilled the inmate’s exercise of his First
Amendment right.†(Rhodes v. Robinson, supra,
408 F.3d at p. 567.) At oral argument,
defense counsel was asked if defendants were asserting the chilling-effect
element was not alleged adequately.
Counsel did not answer that question, but instead responded that their
position on the retaliation claim was that any adverse action occurred before
the protected activity, and therefore there was no retaliation—a position that
did not involve the chilling-effect element.
In the absence of any argument or
challenge to the sufficiency of plaintiff’s allegations concerning the
chilling-effect element, we conclude that plaintiff’s allegation of the actual
destruction of his legal property coupled with his allegation of severe
prejudice in connection with administrative and court hearings are sufficient
to allege he suffered “harm that is more than minimal†and thus satisfy the
chilling-effect element. In
effect, perhaps his allegations that he suffered harm would suffice, since harm
that is more than minimal would seem to have a chilling effect.†(Id.
at p. 567, fn. 11 [allegation that plaintiff suffered harm might satisfy
element regarding chilling effect].) We
agree with this analysis because an allegation regarding chilling effect does
not require a plaintiff to allege he or she was actually affected by the
retaliatory conduct. (See
1262, 1271 [“objective standard governs the chilling inquiry; a plaintiff does
not have to show that his speech was actually inhibited or suppressedâ€];
265,269-270.) Thus, plaintiff’s
allegations satisfy the chilling-effect element.
Correctional Goal
A First
Amendment retaliation claim requires a prisoner to establish that the adverse
action taken against the prisoner “did not reasonably advance a legitimate
correctional goal.†(
Here, the
FAC did not explicitly allege that the destruction of plaintiff’s legal
materials did not reasonably advance a legitimate correctional goal. Plaintiff’s opening brief addresses this
element of his retaliation claim by arguing that defendants “can not possibly
claim a legitimate penalogical interest here, as a legitimate penalogical
interest is certainly not served by disposing of a prisoner’s legal
property.â€
Because
defendants have maintained that the legal materials were returned to plaintiff
and have not argued it had a legitimate correctional goal for destroying any
legal materials, we conclude that plaintiff’s allegations regarding the
destruction of his legal materials satisfies this element.
5. Conclusion
Based on
the foregoing, we conclude that plaintiff has stated a First Amendment
retaliation claim against both Banuelos and Rodriguez.
VI. RIGHT
TO ACCESS TO THE COURT CLAIM
A. General
Principles
Prisoners have a constitutional
right to access to the courts. (
346.) A plaintiff attempting to state a
claim for a violation of his right to court access must allege actual
injury. (Id. at p. 349.) Before a
denial of access to the courts claim can go forward, a prisoner must
“demonstrate that a nonfrivolous legal claim had been frustrated or was being
impeded.†(Id. at p. 353, fns. omitted.)
Not every nonfrivolous legal claim receives
the legal claims for which access to the courts is safeguarded to direct
appeals from convictions, habeas corpus proceedings and civil rights
actions. (Id. at p. 354.)
In
403, the court addressed the allegations necessary to state a claim for denial
of the right to access to courts. The
court distinguished between claims involving a litigating opportunity already
lost (i.e., backward-looking access claims) and claims involving a litigating
opportunity yet to be gained (i.e., forward-looking access claims). (Id.
at pp. 414-415.) An example of a
forward-looking claim is a prisoner class action to remove roadblocks to future
litigation, such as an inadequate prison library. (Id.
at p. 415.) The elements for a
backward-looking access cause of action, which is the type plaintiff is
asserting here, include (1) actual injury, (2) the official acts frustrating
the litigation, and (3) a remedy that may be awarded as recompense that is not
otherwise available in a future suit. (
the loss or impediment of an arguable, nonfrivolous underlying cause of
action—a plaintiff must describe the underlying cause of action “well enough to
apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the
underlying claim is more than hope.†(
complaint must identify a remedy that may be awarded as recompense but not otherwise
available in some suit that may yet be brought.†(Id.
at p. 415.)
The foregoing principles regarding
actual injury were applied in McNeal v.
Ervin (9th Cir. 2011) 460 Fed.Appx. 621.
The Ninth Circuit concluded that the “district court properly dismissed
McNeal’s access-to-courts claim because McNeal did not allege facts showing
that defendants’ loss of his legal materials in 2004 resulted in any actual
injury.†(Id. at p. 622.) The district
court considered McNeal’s allegation that the confiscation deprived him of
access to the courts in a subsequent habeas corpus petition. (McNeal
v. Ervin (E.D.Cal., Mar. 3, 2010, No. CIV S-07-2240 LKK EFB P) 2010 WL
3432282.) The district court found
McNeal had presented thorough briefing to the district court and Ninth Circuit
in connection with his habeas petition and, thus, was not denied effective
access to those courts because of the lost materials. (Ibid.)
B. Analysis
of Plaintiff’s Claim
Defendants contend that plaintiff’s
allegations fail to satisfy the actual injury element and, moreover, plaintiff
is unable to demonstrate that their alleged actions caused him actual prejudice
to existing litigation.
The FAC itself does not contain
factual allegations identifying an underlying cause of action that was lost or
impeded by the destruction of his legal material, much less a description of
that cause of action showing it is not frivolous and has an “‘arguable’†nature
that is more than a hope. (
allegation that the missing legal items “severely prejudiced Plaintiff’s right
to a fair and impartial disciplinary/rules violation report hearing, and
ultimately, further access to the court.â€
The exhibits to the FAC include
assertions that come closer to explaining how plaintiff’s access to the courts
was harmed by the destruction of his legal material. The CDC 602 Appeal contains a request that
plaintiff’s remaining legal property be delivered to him as soon as possible
because his court cases were still active with a court deadline of April 10,
2009. The FAC and its exhibits,
however, do not state whether plaintiff actually missed a deadline because of
the destruction of his legal materials and, if so, what the consequences of
that missed deadline were.
Plaintiff’s opening brief asserts
that the disposal of his legal property impeded his ability to meet a specific
filing deadline imposed by Magistrate Judge Jan M. Adler in a case pending in
the United States District Court for the Southern District of California and,
as a result, he “suffered actual injury by failing to meet said deadline.â€
We conclude the general allegation
in the FAC regarding prejudice to his access to the court fails to include
factual allegations necessary to plead the actual injury element of an
access-to-court claim.
The next question is whether
plaintiff should have been granted leave to amend to cure the defect. (Blank
v. Kirwan, supra, 39 Cal.3d at p.
318.) Based on the representations set
forth in plaintiff’s opening brief about failing to meet a deadline in a
federal court case, we conclude that there is a reasonable possibility that the
defect can be cured if plaintiff is given an opportunity to amend his
access-to-court cause of action.
In Christopher v. Harbury, supra,
536 U.S. 403, the United States Supreme Court did not set forth the details
that should be alleged when the underlying cause of action has been presented
in a lawsuit and lost or impeded because of a missed deadline. Consequently, we will provide guidance as to
the facts to be set forth in an amendment, should plaintiff choose to amend his
pleading. Besides the description of the
underlying cause of action required by Christopher
v. Harbury, supra, 536 U.S. 403,
the amendment should (1) include the name of the case, the case number, and the
court in which it was filed; (2) identify the date and nature of the deadline;
the failure to meet the deadline; and (4) describe how each such cause of
action was affected by (a) plaintiff’s failure to meet the deadline or (b)
plaintiff’s inability to include information in the document filed to meet the
deadline.
detailed information, his amendment should allege as many of the details as is
possible and provide an explanation for why the other details have not been
included.
VII. MISCELLANEOUS
MATTERS
Ordinarily,
our inquiry into an order sustaining a general demurrer “ends and reversal is
required once we determine a complaint has stated a cause of action under any
legal theory.†(Genesis Environmental Services v. San Joaquin Valley Unified Air
Pollution Control Dist. (2003) 113 Cal.App.4th 597, 603.) Under this rule, our analysis could have been
limited to the retaliation claim. We,
however, chose to address plaintiff’s due process, equal protection and
access-to-court causes of action because those claims presented legal questions
that, if resolved in this appeal, could promote the efficiency of subsequent
proceedings. As a result, our directions
to the trial court are more detailed than a simple direction to enter an order
overruling the general demurrer. (See
In addition, from our reading of
the FAC, it is not clear whether plaintiff intends to pursue any California
tort law claim concerning damage to personal property (i.e., nonconstitutional
claims). Under California statute, a
demurrer may be sustained on the ground that the “pleading is uncertain.†(Code Civ. Proc., § 430.10, subd. (f).) Based on this statute, we direct the trial
court to sustain the demurrer as to potential California tort law claims for
damage to personal property. (1 Weil
& Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2012) ¶ 6:104, p. 6-28.) The court
shall allow plaintiff an opportunity to resolve this uncertainty by amending
his pleading and clarifying whether he intends to pursue any state tort law
claims (see Cal. Rules of Court, rule 2.112(2) [each separately stated cause of
action or count must specifically state its nature (e.g., “for fraudâ€)]).
DISPOSITION
The
judgment is reversed. The trial court is
directed to vacate its June 30, 2011, order sustaining the demurrer without
leave to amend and to enter a new order (1) sustaining the demurrer without
leave to amend as to plaintiff’s equal protection and due process claims, (2)
sustaining the demurrer with leave to amend as to plaintiff’s access-to-court
claim, (3) sustaining the demurrer on grounds of uncertainty and with leave to
amend as to any California tort law claims for damage to personal property, and
(4) overruling the demurrer as to plaintiff’s retaliation claim against
defendants Banuelos and Rodriguez.
Plaintiff shall recover his costs on
appeal.
_____________________
Franson, J.
WE CONCUR:
_____________________
Wiseman, Acting P.J.
_____________________
Poochigian, J.
name="_ftn1" title="">[1] The
Department’s regulations provide an administrative remedy—an appeal process
consisting of four levels of review—that must be exhausted before a prisoner
may file a lawsuit. (
Cal.App.4th 659, 666-667; see Cal. Code Regs., tit. 15, §§ 3084.1, 3084.5 &
3084.7 [right to appeal, screening and managing appeals, and levels of appeal
review].)
name="_ftn2" title="">[2] Even
if a violation of the right to equal protection set forth in the California
Constitution had occurred, damages are not among the remedies available for
such a violation. (Gates v. Superior Court (1995) 32 Cal.App.4th 481, 518.)
