Free Reply to Opposition - District Court of California - California

Case 3:07-cv-02833-CRB

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DAVID S. CHANEY Chief Assistant Attorney General 3 FRANCES T. GRUNDER Senior Assistant Attorney General 4 MICHAEL W. JORGENSON Supervising Deputy Attorney General 5 LISA SCIANDRA, State Bar No. 246532 Deputy Attorney General 6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415) 703-5846 Fax: (415) 703-5480 8 Email: [email protected] 9 Attorneys for Defendants Horel, Wilber, Carrier, and . JacquezY 10 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE NORTHERN DISTRICT OF CALIFORNIA 13 SAN FRANCISCO DIVISION 14 15 16 17 18 19 20 21 22 INTRODUCTION . Plaintiff Jonathan W. Grigsby (plaintiff), a state prisoner in the custody of the California JONATHAN W. GRIGSBY, Plaintiff, Case No. C 07-2833 CRB DEFENDANTS' REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (No hearing pursuant to August 28,2007, Order of Service)

v.
ROBERT HOREL, et a!., .. Defendants.

·23 Department of Corrections and Rehabilitation (CDCR), filed an action under 42 U.S.C. § 1983 24 25 against Defendants Horel, Wilber, Carrier, and Jacquez (Defendants) alleging mail tampering and. interference with ongoing court actions while incarcerated at Pelican Bay State Prison (Pelican

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1. To the best knowledge ofthe Attorney General's Office, Defendant Miller has not been

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served, and so the Attorney General's Office makes no appearance on his or her behalf.
Defs.' Reply to PI.'s Opp. to Defs.' Mot. Summ. J.

J. Grigsby v. R. Horel, et al. . C 07-2833 CRB

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1 Bay). This Court screened Plaintiffs Complaint under 28 U.S.C. § 1915A and recognized those 2 claims but dismissed Plaintiffs claim for failure to process-administrative appeals. (Order of 3 Service, Docket No. 13 at 2:17-25.) Defendants moved for summary judgment and qualified 4 immunity. (See Docket Nos. 22-26.) Plaintiff opposed Defendants' motion for summary

5 judgment and qualified immunity (see Docket No. 43), and Defendants now reply. 6 7
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ARGUMENT

I.
PLAINTIFF FAILS TO SHOW THAT HIS MAIL WAS TAMPERED WITH IN VIOLATION OFTHE FIRST AMENDMENT. A. Plaintiff Fails to Show that Any Legal Mail which May Have Been Opened by Defendant Carrier Actually Met the Criteria Under CDCR Regulations for "Confidential Mail."
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CDCR Policy Regarding Confidential Mail.

Plaintiff is wrong in his unsupported allegations based on information and belief that

14 Defendant Carrier opened and read confidential legal mail. It is CDCR policy to preserve the 15 confidentiality of legal mail, and to open and inspect such mail for contraband only in the 16 presence of the inmate. Cal. Code Regs. tit. 15, § 3144. Any incoming mail which qualifies as 17 "confidential mail" will be opened in the presence of the inmate, ld. at §§ 3141-3144. Under 18 CDCR regulations, an inmate may correspond confidentially with persons and staff members of 19 persons including, as relevant to Plaintiff'sallegations: all state and federal judges and courts; an 20 21 22 23 24 25 attorney listed with a state bar association; and "legal service organizations" such as the American Civil Liberties Union and the Prison Law Office. ld. at § 3141(c). Incoming mail from these entities will be processed as confidential correspondence only if the envelope bears the name or title and a return address of a sender listed in Section 3141. ld. at § 3143. Any such mail that does not include the name or title of the sender will be processed as non-confidential correspondence. ld.; (see also Decl. Barlow at Ex. E).

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Defs.' Reply to Pl.'s Opp. to Defs.iMot. Summ. J.

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Plaintiff Fails to Show that His Alleged Legal Mail Met the Criteria for "ConfidentiallVIail."

Plaintiff alleges that Defendant Carrier opened and read' confidential mail sent from the

4 Commission on Judicial Performance,"legiti:r:iJ.ate legal services," the Del Norte County Superior 5 Court, the law firm of Rosen, Bien and Galvan, and the State Bar. (Compl. at unnumbered 6 handwritten page 4 1 21; 1,3 1 77.) Plaintiff offers no evidence that Defendant Carrier actually 7 opened or read these particular items of correspondence-or that this correspondence even 8 existed. Moreover, Plaintiff fails to show that these alleged items of correspondence met the .' 9 criteria for "confidential mail" under CDCR regulations. 10 Plaintiffhas a high volume of incoming and outgoing legal mail, not all of which meets the

11 criteria for confidential mail. (MSJ, Stmt. Facts at 11 1-3.) For example, Plaintiffreceived a 12 letter from theState Bar of Califomi a that was postmarked June 14,2006. (Docket No. 24, Decl. 13 Sciandra at Ex. B.) This item of correspondence is not confidential mail because it does not 14 include the name or title of the individual sender. (Id.) Plaintiff also received letters from law
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15 firm Rosen, Bien and Asaro on June 30, 2006, and July 13, 2006. (Id.) Even though these 16 envelopes bear a stamp saying "confidential legal mail," they do not meet the criteria under 17 CDCR regulations for confidential mail because they do not include the name or title of the 18 individual sender. (Id.); see also Cal. Code Regs., tit. 15, § 3143; (Docket No. 23, Decl. Barlow 19 at Ex. E). 20 Additionally, Plaintiff attaches as Exhibit 99 to his Opposition copies of two envelopes'

21 from the American Civil Liberties Union that are addressed to Plaintiff. (Docket No. 43 at Ex. 22 99.) Even though these envelopes bear a stamp saying "Legal Mail Confidential," they do not
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23 meet the criteria under CDCR regulations for confidential mail because they do not include the 24 name or title of the individual sender. (Id.); see also Cal. Code Regs., tit. 15, § 3143; (Docket 25 No. 23, Decl. Barlow at Ex. E). Thus Plaintiffs ownevidence shows that these items oflegal 26 mail are not confidential legal' mail. 27 Therefore, the mere fact that Plaintiffs alleged legal mail may have been opened and read

28 does not necessarily mean that Plaintiffs confidential legal mail was opened and read.
Defs.' Reply to Pl.'s Opp. to Defs.' Mot. Summ. J.

J. Grigsby v. R. Horel, et al.
,C 07-2833 CRE

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Copies of Plaintiff's Legal Mail in Defendants' Exhibits Came from Plaintiff's CDCR Central File, Not from Plaintiff's Personal Property.

In his Opposition, Plaintiff wrongly alleges that Defendants went through his personal

4 .property.found his legal mail, and used it as evidence against him in their Motion for Summary 5 Judgment. (See Docket No. 43 at 2-3.) Instead, as stated in counsel's declaration, the copies of 6 three envelopes bearing Plaintiffs name and address as recipient that are attached as Exhibit B to 7 counsel's declaration are true and correct copies of documents that came from Plaintiffs central 8 file. (See Docket No. 24, Decl. Sciandra at 1 ~ 2, Ex. B.) The central file is a master file 9 maintained byCDCR that contains an individual inmate's records. Cal. Code Regs. tit. 15, § 10 3000. Therefore, documents obtained from Plaintiffs central file are not Plaintiffs personal 11 property. 12 Because Plaintiff fails to show that Defendant Carrier opened and read any confidential

13 ·legal mail in violation of the First Amendment, Defendants are entitled to summary judgment on 14 Plaintiffs claim as a matter oflaw. 15 16 17 18

II.
PLAINTIFF FAILS TO SHOW THAT HE WAS DENIED ACCESS TO THE COURTS IN VIOLATION OF THE FIRST AMENDMENT. .:
Plaintiff is wrong in his unsupported allegations that he was denied access to the courts in

19 violation of the First Amendment. Moreover, Plaintiff fails to show that he was actually injured 20 as a result of any act or omission by any defendantin this action. 21 The constitutional right of access to the courts is limited to direct criminal appeals, habeas

22 petitions, and civil rights actions under 42 U.S.C. § 1983. Lewis v. Casey, 518 U.S. 343,354-55 23 (1996). The Court in Lewis further held that inmates must only be provided with the tools "the 24 inmates need in order to attack their sentences, directly or collaterally, and in order to challenge
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25 the conditions of their confinement. Impairment of any other litigating capacity is simply one of 26 the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. at 27 355 (emphasis and punctuation in original). 28 Additionally, to state a claim for denial of access to the courts, a prisoner must show actual
Defs.' Reply to Pl.'s Opp. to Defs.' Mot. Summ. J..

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1 injury. Id. at 351-52. An "actual injury" is "actual prejudice with respect to contemplated or 2 existing litigation, such as the inability to meet a filing deadline or present a claim." Id: at 348. 3 Here, Plaintiff fails to show that Defendants denied his access to the courts in a direct

4 criminal appeal, habeas petition, or civil rights action. Plaintiff also fails to show a single 5 instance in which he suffered any actual prejudice with respect to his ongoing litigation, 6 Plaintiff s allegations, taken as true, do not show "that an actionable claim .... which he desired 7 to bring, has been lost or rejected, or that the presentation of such a claim is currently being 8 prevented, because this capability offiling suit has not been provided." See id. at 356. 9 A. 10
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Plaintiff Fails to Show that He was Denied Access to the Courts in Small Claims Case Number CICL06-2139.
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Small Claims Case Number CICL06-2139.

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Plaintiff fails to state a claim for denial of access to the courts for small claims case number

13 CICL06-2139. In his Complaint, Plaintiff alleges that Defendant Carrier gave Litigation 14 Coordinator Barlow Plaintiffs "letter or information" regarding this small claims action,and that 15 Barlow used the "letter or information" to somehow interfere with Plaintiffs ability to litigate 16 thecase. (CompI. at unnumbered handwritten pages 4 ~ 22; 7 ~ 37to 8 ~ 43; 13 ~ 78-80.) 17 Small claims case number CICL06-2139 was a tort action that Plaintiff brought against "

18 correctional staff at Pelican Bay. (Docket No. 23, DecI. Barlow at2 ~ 4a.) Litigation 19 Coordinator Barlow provided the defensefor the correctional staff defendants. (Id. at 2 ~ 4.) In' 20 his defense of this case, Barlow argued that the case should be dismissed because Plaintiff failed 21 to comply with the Tort Claims Act, California Government Code section 900, et seq.; which
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22 requires that a plaintiff file a tort claim with the California Victim Compensation and 23

Government Claims Board (Board) before filing suit against any state employee or agency.

,24 (Docket No. 23, DecI. Barlow at 2 ~ 4b, Ex. A.) More specifically, Barlow argued that he called 25 the Board on September 6, 2006, and was told that Plaintiff had not submitted a claim. (Docket
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26 No. 23, DecI. Barlow at Ex. A.)

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Defs.' Reply to Pl.'s Opp. to Defs.' Mot. Summ. J.

1. Grigsby v. R. Horel, et al.
C 07-2833 CRB

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Small Claims Tort Cases Like Case Number CICL06-2139 are Not Protected by the Constitutional Guarantee of Access to the Courts.
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In his Opposition Plaintiff alleges that, contrary to Litigation Coordinator Barlow's
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4 statements in his declaration, Plaintiff did file a tort claim with the Board. (DocketNo. 43 at I·5 2.). To support his allegation, Plaintiff offers as Exhibit 1 a copy of a letter that appears to be 6 from the Board. (Docket No. 43 at Ex. 1.) The letter notes that it is in reference to claim 7 G558437 for Jonathan "Grisby," and it is addressed to a Charles Carbone. (Id.) The letter does 8 not describe the substance of claim G558437. (Id.) Plaintiff alleges that this letter shows. 9 "perjury and fabricated statements" in Defendants' Motion for Summary Judgment. (Docket No. 10 43 at 2.) 11 Plaintiffs allegations regarding small claims case number CICL06-2139 fail to state a

12 claim for denial of access to the courts for several.reasons: 13 First and most significantly, the small claims case was a tort action in small claims
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14 court-not a federal civil rights action under 4~ U.S.c. § 1983-and it therefore is not ,protected 15 by the constitutional guarantee of access to the courts. Lewis, 518 U:S. at 354-55. Any 16 allegations regarding small claims case number C1CL06·2139 are thus irrelevant to Plaintiff s 17 claim for denial of access to the courts. 18 Second, Plaintiff still alleges no facts to show that he was actually injured as a result of any

19 act or omission by any defendant in this action, because: (a) he does.not allege any injury; and 20 (b) Litigation Coordinator Barlow is not a defendant. 21 Lastly, even assuming arguendo that the letter in Plaintiffs Exhibit 1 actually concerns the

22 claim that Plaintiff brought in. small claims case number C1CL06-2139, then the letter still fails 23 to show that there were "perjury and fabricated statements" in Defendants' Motion for Summary 24 Judgment. The letter.in Plaintiffs Exhibit 1 is addressed to a Charles Carbone and also 25 misspells Plaintiffs last name as "Grisby," omitting the second letter G from "Grigsby." 26 (Docket No. 43 at Ex. 1.) Therefore it is likely that when Litigation Coordinator Barlow called 27 the Board on September 6, 2006, to check whether Plaintiff had filed a claim, the Board was 28 unable to locate this claim because it was recorded under either the name of Charles Carbone or
Defs.' Reply to PI.'s Opp. to D~fs.' Mot. Summ. J.

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the misspelled name of Jonathan "Grisby." Thus because Plaintiff fails to show that he was denied access to the courts in violation of the First Amendment, Defendants are entitled to summary judgment on Plaintiffs claim as a matter of law,

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CONCLUSION
Plaintiffs mail tampering claim fails because he fails to show that any defendant opened or

7 read confidential legal mail in violation of the First Amendment. Plaintiff s access to the courts

8 claim fails because he was not denied access to the courts in violation of the First Amendment by
9 10 any Defendant. Plaintiff fails to state a claim against Defendants Horel, Jacquez, and Wilber for failure to process administrative appeals. Lastly, Defendants are entitled to qualified immunity. For these reasons, Defendants respectfully request that the Court grant their Motion for Summary Judgment. Dated: February 14,2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DAVID S. CHANEY Chief Assistant Attorney General FRANCEST.GRUNDER Senior Assistant Attorney General MICHAEL W. JORGENSON . Supervising Deputy Attorney General

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LISA SCIANDRA Deputy Attorney General Attorneys for Defendants Horel, Wilber, Carrier, and Jacquez

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SF2007200839

Defs.' Reply to PI.'s Opp. to Defs.' Mot. Summ. J.

J. Grigsby v. R. Horel, et al. C 07-2833 CRB

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DECLARATION OF SERVICE BY U.S. MAIL
Case Name: No.:

J. Grigsby v. R. Horel, et al.

C 07-2833 CRB

I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed it). the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On February 14, 2008, I served die attached

DEFENDANTS' REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Jonathan Grigsby (T-61830) Salinas Valley State Prison DMH P.O. Box 1050 Soledad, CA 93960 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on February 14, 2008, at San Francisco, California.

M.Luna Declarant
40218305.wpd

Signature