Aguilar v. Carpio

ALEXIS AGUILAR, Plaintiff, v. D. CARPIO, et al.

1:17-cv-01190-DAD-GSA-PC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

July 29, 2019

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM

(ECF No. 21.)

OBJECTIONS, IF ANY, DUE WITHIN 14 DAYS

I. BACKGROUND

Alexis Aguilar ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On August 14, 2017, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On July 17, 2018, the court screened the Complaint and issued an order dismissing the Complaint for failure to state a claim, with leave to amend. (ECF No. 14.) On November 8, 2018, Plaintiff filed the First Amended Complaint, which is now before the court for screening. 28 U.S.C. § 1915A. (ECF No. 21.)

II. SCREENING REQUIREMENT

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint is required to 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 state a viable claim, Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

III. SUMMARY OF FIRST AMENDED COMPLAINT

Plaintiff is a state prisoner incarcerated at the Deuel Vocational Institution in Tracy, California. The events at issue in the First Amended Complaint allegedly occurred at the California Correctional Institution (CCI) in Tehachapi, California, when Plaintiff was incarcerated there in the custody of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff names as defendants D. Carpio (Mail Room Supervisor), and Jefferey Beard (Secretary, CDCR) (collectively, "Defendants").

Plaintiff alleges as follow. Plaintiff subscribed to a publication titled Artnews from April 2013 through September 2015. Artnews is an art magazine published since 1902, with art ranging from prehistoric to more contemporary art, published eleven times per year. On many occasions Plaintiff received issues of Artnews that depicted nude breasts or nude models inartistic settings, and none of these depictions were obscene. At all times the magazine portrayed art, not obscenity. The magazine was informative about art and artists, and as a whole did not appeal to a prurient interest nor lack serious artistic material. Pursuant to state regulations regarding obscene material, previous and subsequent Artnews publications were not deemed to be a threat to the institution even though they depicted more nudity than the publication in question.

On June 28, 2015, Plaintiff realized that his Artnews issues from February and June 2015 had not been delivered to him. Plaintiff submitted a form 22 request-for-interview addressed to defendant Carpio and asked her (Carpio) to send him the 1819 form (Notification of Disapproval Mail/Packages/Publications CDCR 1819). Defendant Carpio was in violation of CDCR regulations, the DOM (Department Operations Manual), and due process for failing to timely notify Plaintiff that his mail was withheld.

On June 30, 2015, Plaintiff received a response from defendant Carpio informing him that the 1819 form for the February 2015 Artnews was attached, with her explanation of why the issue was withheld. The 1819 form was dated February 13, 2015, but Plaintiff had not seen or received it in February. Defendant Carpio had signed the form February 13, 2015 as the date being "forwarded to inmate." FAC at 3 ¶ 13. In addition, the form listed Plaintiff as being housed in B-8B-210, but Plaintiff did not move into cell B-8B-210 until June 4, 2015. Prison officials claimed the publication was withheld because it met the disapproval criteria denoted in CCR Tit. 15 § 3135(d)(1), that it "portrays sexually explicit materials . . . pages 25 and 40 show the areola and nipple of female bodies." FAC at 20-21 ¶ 15.

Artnews Appeal

On June 30, 2015, Plaintiff filed a form 602 appeal explaining why he should receive the withheld magazine. On July 2, 2015, Plaintiff received notification that the 602 was cancelled for exceeding time constraints. Appeals coordinator M. Dailo [not a defendant] notified Plaintiff that "the notification of disapproval was sent to you Feb. 2015, and this appeal was received in July 2015. This is well beyond the 30-day time limit." FAC at 4 ¶ 17. Plaintiff filed another 602 based on the wrongful cancellation of the appeal and explained that defendant Carpio senthim the 1819 form on that date, forged the document, and made it appear as if it was sent in February 2015. On August 10, 2015, Plaintiff was interviewed telephonically by Appeals Coordinator J. Zanchi [not a defendant]. Plaintiff explained to Zanchi about the timeliness issue of the appeal and Zanchi told Plaintiff he would receive a response. The appeal was denied at the Second level of review by E. Garcia [not a defendant]. Plaintiff pursued the appeal to the highest level, exhausting his remedies.

Juxtapoz Appeal

In June 2015, Plaintiff subscribed to an art publication titled Juxtapoz. Some articles in the publication depicted nudity, but none appeared to be pornographic or appealed to a prurient interest. On July 3, 2015, Plaintiff received a 1819 form dated July 2, 2015, informing him that the publication Juxtapoz was withheld due to it being listed on the Centralized Disapproved Publications List (Banned List). Plaintiff disagreed with the blanket ban because the publication, whose only theme is art, was not obscene. Plaintiff asserts that the ban seemed to be an exaggerated response given that CDCR allows transgender inmates with augmented breasts to walk the prison recreational and indoor setting without their shirts on, exposing their breasts, and heavily tattooed inmates are allowed to expose their tattoos which often depict nude women exposing their breasts and sometimes depict sexual intercourse.

On July 29, 2015, Plaintiff filed a 602 appeal because he disagreed with the outright blanket ban. The 602 was returned to Plaintiff on July 30, 2015, Plaintiff again submitted it on July 30, 2015, by giving it to the officers conducting mail pick-up. The Appeals Coordinator accepted the appeal, assigned it log no. CCI-0-15-01635, and assigned a due date of October 18, 2015. Plaintiff followed up on the appeal and was told on October 6, 2015 by Zanchi that the appeal "was completed on October 6, 2015 and mailed to you via institutional mail." FAC at 6-7 ¶¶ 33, 34. Plaintiff did not receive it and followed up with Appeals Coordinator Sergeant Spears [not a defendant] and was given a copy of the 602 from his file on October 16, 2015. Plaintiff noticed that the 602 copy was incomplete -- pages were missing -- and informed Spears who looked for the pages and could not find them.

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Appeal Requesting Investigation of Missing Pages of Juxtapoz Appeal

On October 15, 2015, Plaintiff filed a 602 asking for an investigation of the disappearance of the pages from the Juxtapoz appeal. On October 28, 2015, the October 15th appeal was granted and Plaintiff received a "treat as original" copy of the Juxtapoz appeal. FAC at 7 ¶ 41. However, Plaintiff noticed that Zanchi did not conduct the investigation and neglected to interview Plaintiff face-to-face. Plaintiff pursued the October 15th appeal to the highest level of review, exhausting his remedies.

Juxtapoz Appeal, continued

Plaintiff noticed on his copy of the Juxtapoz appeal that it was assigned to "OPS"¹ and defendant Carpio was tasked with conducting an interview. FAC at 8 ¶ 43. Defendant Carpio falsely noted on the appeal that she had conducted an interview with Plaintiff on September 18, 2017 in the "H.U." (Housing Unit). Id. Plaintiff did not receive such interview.

Plaintiff alleges that defendant Carpio "retaliated, harassed, intentionally obstructed and/or frustrated, and discarded Plaintiff's grievance because [] Plaintiff exercised his rights to file a grievance on 7-2-15 against Defendant Carpio." Plaintiff alleges that defendant Carpio harmed Plaintiff and chilled his First Amendment rights, with Carpio's conduct not undertaken to advance a legitimate penological interest.

The appeals coordinator noted on the appeal that it was delivered to Plaintiff on October 7, 2015, not October 6, 2015 as Zanchi had claimed. E. Garcia [not a defendant] denied the appeal. Plaintiff submitted the appeal to the third level reviewer on October 28, 2015. In January 2016, Plaintiff received notice...