Drake v. Ibal

• Decision Date: 30 December 2022
• Docket Number: 1:22-cv-01149-BAM (PC)
• Parties: SAM DRAKE, Plaintiff, v. IBAL, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

SAM DRAKE, Plaintiff,
v.
IBAL, et al., Defendants.

No. 1:22-cv-01149-BAM (PC)

United States District Court, E.D. California

December 30, 2022

ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS (ECF No. 10) FOURTEEN (14) DAY DEADLINE

BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE

Plaintiff Sam Drake (“Plaintiff') is a pretrial detainee proceeding pro se and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. The Court screened Plaintiff's complaint, and he was granted leave to amend. Plaintiff's first amended complaint, filed December 13, 2022, is currently before the Court for screening. (ECF No. 10.)

I. Screening Requirement and Standard

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).

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A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff's allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

II. Plaintiff's Allegations

Plaintiff is currently housed at Fresno County Jail. The events in the complaint are alleged to have occurred while Plaintiff was housed as a pretrial detainee in Fresno County Jail (“FJC”). Plaintiff names as defendants: (1) Keoniyom, Correctional Officer, (2) Margaret Mims, outgoing Sheriff, (3) Steve McComas, Assistant Sheriff, (4) Enriquez, Correctional Officer, (5) S. Nichols, Mailroom Sergeant. All defendant are sued in their individual capacities.

Plaintiff alleges a violation of substantive Due Process and First Amendment involving an unconstitutional policy authorizing the deprivation of mail, FCJ Policy E-120.^[1] Plaintiff alleges that Defendants Mims, McComas, Keoniyom, Enriquez and Nichols deprived Plaintiff of his right not to be punished, from March 2019 through March 4, 2021 (first time period) and from March 28, 2022 through November 30, 2022 (second time period). Plaintiff alleges that the “continuing violation doctrine” applies for the entire time he has been detained at FCJ. The FCJ

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Policy #E-120, last revised in 2021, restricts possession of non-nude publications where no sexual activity is depicted, solely based on clothing or pose displayed and directs or authorizes staff to disallow Plaintiff's access to this material. (See Doc. 10, Exh. 1.) Plaintiff alleges that FCJ Policy #E-120 is punitive in that it forces Plaintiff to suffer removal of mail rights he would have in prison or in a State hospital.

Defendant Mims was the policy maker and has final authority to establish all FCJ policies and established FCJ policy #E-120, adding posing, clothing and nonfrontal nudity and partial nudity restrictions which enlarges the Title 15 CCR §3006(c)(17) frontal nudity ban. Defendant McComas was responsible for implementing the policy and procedures. Defendant Nichols was responsible for the FCJ mailroom and is responsible for training and supervision of all employees of the mailroom. Plaintiff alleges that “at all times relevant to this matter Dfnts Mims, McComas and Nichols had a routine practice of depriving detainees of the right to not be punished by removing all constitutional/statutory safeguards against arbitrary deprivation of rights.” Plaintiff had a statutory right (PC §2601) to buy and possess non-nude publications under the First Amendment.

Plaintiff alleges that FCJ Policy #E-120's restriction on purchase and possession of non-nude/side-rear nude publications is excessive in relation to FCJ management and security and does not pose any threat. Defendant Mims made the FCJ Policy #E-120 more restrictive with the intent to oppress and harm Plaintiff and is more restrictive than PC §§ 311, 2600, 2601.

Plaintiff filed a grievance in 2019-2020 noting that the provision was modified to incorporate the language of 15 CCR §3006(c). Mims did not change the overly broad, vague, restrictive provision in FCJ Policy #E-120. Depriving Plaintiff of mail violated Due Process. Mims has no authority to implement policies which conflict, supersede or reduce state regulation. Plaintiff alleges that Mims, McComas, Nichols can only deprive Plaintiff of publications what fail the obscenity test otherwise with §3006(e).

While at FCJ, Plaintiff has only ordered non-nude noncontraband photos or magazines from the same vendor he ordered from while in state custody 1999-2018 and which were permitted in state custody. FCJ Policy #E-120 contains provisions which are overly restrictive or

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excessive and overly broad language. (FAC ¶27, 28.) Plaintiff describes the various photos, which are attached as exhibits, which fall within the FCJ Policy #E-120, but which should not fall with the policy. Plaintiff alleges that as a “matter of law” the photos he orders are not obscene or sexually explicit and not contraband.

Plaintiff alleges that 15 CCR §3006(c) is sufficient to meet the FCJ facility management, safety and security needs. FCJ Policy #E-120 exaggerated the safety, security and facility management needs (at §x, c) to deny possession of sexy photographs.

FCJ Policy #E-120 contains a notice provision which does not give sufficient notice of the full contents of the mail parcel being disallowed and permits staff to withhold the full content. Mims, McComas, and Nichols were aware of the inadequate notice and refused to correct it.

FCJ Policy #E-120 contains a “Blanket disposal” provision that disallows entire content of mail and is more restrictive than prison mail procedures and is a deterrent restriction that is intended to frustrate/annoy family, friends and acquaintances.

In 2021, Defendant Mims revised FCJ policy #E-120 because detainees were filing mail related grievances from 2018-21. Prior to the change, the practice by mailroom staff under Nichols' leadership was to deprive detainees of non-nude magazines and photos on their own value judgment and issue false or incomplete notices and tell detainees to stop ordering the publications.

FCJ Policy #E-120 “Sexy Content Ban” provisions, including policy #E-410's mirroring provisions (Exh. 1 p. 14 and p. 20-21), deprived Plaintiff of his rights not to be punished. FCJ Policy #E-120 disallows all sexy non-nude magazines featuring adult female models wearing bikinis, lingerie, etc, despite the content not being obscene or sexually explicit within the meaning of 15 CCR 3006(C). (See Exh.. 5.) FCJ treats all non-nude sexy publications as pornography.

Plaintiff requires pictorial images to rechannel and release sexual energy in a healthy way because he cannot have one-on-one interaction with the opposite sex. Plaintiff does not purchase pornography and purchases only non-nude or partially nude publications that are permitted.

Plaintiff alleges that direct negative consequences of the FCJ Policy...