Andersen v. Griffin

Filed 9/13/07 Andersen v. Griffin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Fredrick Paul Horn, Judge. Affirmed.

Andrew Andersen, in pro. per., for Plaintiff and Appellant.

Benjamin P. de Mayo, County Counsel and James C. Harman, Deputy County Counsel, for Defendants and Respondents.

* * *

Appellant brought this case for purported civil rights and state law violations relating to the use of television at the Orange County jail, naming several employees of the Orange County Sheriffs Department as defendants. The trial court sustained their demurrer without further leave to amend. As we find no merit in any of appellants arguments claiming the trial court erred, we affirm.

I

FACTS

Appellant Andrew Andersen was detained at the Orange County jail (OCJ) while awaiting trial on criminal charges. He is now serving a prison sentence. In February 2006, he filed a lawsuit against Lieutenant Bill Griffin and Sergeant Michael Curry of the Orange County Sheriffs Department in their individual capacities. He later amended the complaint to add J.B. Davis (another sheriffs officer) as a defendant, and also amended to sue the defendants in their official as well as individual capacities.

Andersen alleged that he was a protective custody inmate given access to television for two hours per day. According to Andersen, denial of access to television is punishment for breaking jail rules.^[1] He claimed the television schedule was set by the correctional program coordinator, whose salary was paid by an inmate welfare fund. Andersen alleged that since April 2005, the television channel started to be changed to childrens programming, infomercials, shopping channels, telethons, and other programs that were not on the television schedule. Andersen and other inmates interpreted this programming as punishment.

He also alleged that he was frequently subjected to television programming on a religious channel that promoted a single religion. He asserted this amounted to promoting a specific religion to the inmate population.

The complaint alleged that Andersen repeatedly complained about these practices, both verbally and in writing. Three grievances were answered by Curry, who allegedly informed Andersen that all grievances were reviewed by Griffin.

The complaint alleged two claims under 42 United States Code, section 1983 (section 1983). Andersen claimed that using television to punish pretrial detainees was unconstitutional and therefore cognizable under section 1983. He also alleged that subjecting inmates to a channel that promoted a single religious view violated the establishment clause. Finally, he alleged a cause of action for misuse of Inmate Welfare Funds under state law, claiming that deviating from the published television schedule misused inmate welfare funds.

In addition to compensatory and punitive damages, defendant also apparently sought a court order to prohibit the jail from broadcasting the religious channel and to order the jail to refrain from punishing pretrial detainees with television and misusing inmate welfare funds.

The trial court deemed this matter related to six other cases Andersen had brought against the Orange County Board of Supervisors, the Orange County Sherriffs Department, and an individual deputy. Defendants brought a demurrer, which the trial court eventually sustained without further leave to amend. Andersen now appeals.

II

DISCUSSION

Standard of Review

In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, 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.) We review the trial courts decision de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.)

As a state court, we look to federal law to determine the validity of an action under section 1983. (Buenavista v. City and County of San Francisco (1989) 207 Cal.App.3d 1168, 1174.) [S]tate law that would produce a different outcome in state than in federal court [on a claim under section 1983] must yield to federal law. (County of Los Angeles v. Superior Court (1999) 21 Cal.4th 292, 300.)

Section 1983 Claim

While Andersen purports to bring two separate causes of action under section 1983, these are properly considered a single cause of action supported by varying facts. To state a claim under section 1983, however, the plaintiff must identify a cognizable interest protected by the Constitution. In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. (Bell v. Wolfish (1979) 441 U.S. 520, 535, fn. omitted.)

The first set of facts Andersen raises concerns whether deviating from the jails scheduled television programming amounts to harassment or punishment. We find it does not. Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility. And the fact that such detention interferes with the detainees understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into punishment. (Bell v. Wolfish, supra, 441 U.S. at p. 537.)

Courts have found that there is simply no constitutionally protected right at all to watch television while incarcerated or detained. (See Murphy v. Walker (7th Cir. 1995) 51 F.3d 714, 718, fn. 8 [denial of television not a constitutional violation]; Montana v. Commissioners Court (5th Cir. 1981) 659 F.2d 19, 23 [Claims relating to usage of radio and television did not pertain to federal constitutional rights and were properly dismissed as frivolous]; Manley v. Fordice (S.D. Miss. 1996) 945 F. Supp. 132, 135 [no right to television while incarcerated]; May v. Baldwin (D. Or. 1995) 895 F. Supp. 1398, 1409-1410 [confinement to cell without dayroom and television privileges not a violation of an established constitutional right].)

If there is no right to watch television at all, then it follows there is no right to watch particular programs at a given time. This is simply not a cognizable interest under the Constitution, and Andersens section 1983 claim based on these facts must fail.

Andersen next claims that his rights under the establishment clause were violated because the television was sometimes turned to a religious channel. The Establishment clause states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . . (U.S. Const., 1stAmend.) In the course of adjudicating specific cases, this Court has come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institutions affairs. (County of Allegheny v. American Civil Liberties U. (1989) 492 U.S. 573, 590-591, fns. omitted.)

In Canell v. Lightner (9th Cir. 1998) 143 F.3d 1210 (Canell) the Ninth Circuit considered that standard in light of a section 1983 claim. Lightner, a correctional officer, worked three nights a week in the unit in which Canell was housed during pretrial detention. The plaintiff alleged that According to Canell, Lightner regularly brought his Bible to work and placed it in the inmates plain view. He engaged in religious debate and discussion with inmates, performed mock preaching, and sang Christian songs while on duty. For example, one evening while Canell was watching a television program about a gay pride march, Lightner told him that homosexuality was wrong and proceeded to cite several Bible passages. Canell further alleges that Lightner disturbed his Muslim prayers by singing Christian songs or preaching. (Id. at pp. 1211-1212.)

The trial court granted summary judgment, and the Ninth Circuit affirmed, finding that the plaintiff has not alleged facts or offered supporting evidence tending to show that Lightners actions constituted government endorsement or sponsorship of religion. (Canell, supra, 143 F.3d at p. 1214.) The acts alleged here are significantly less than what was alleged in Canell merely the passive act of turning a television channel. This does not establish the government endorsement or sponsorship of religion, and does not support a claim under section 1983.

The deficiencies in Andersens complaint are not merely the failure to plead sufficient facts. As a matter of law, his claims are simply not cognizable, and therefore there is no probability that he could amend his complaint adequately. Therefore, we find the trial court properly sustained the demurrer without leave to amend.

State Law Claim

Andersens final claim, under state law, is framed as a cause of action for misuse of inmate welfare funds. This, however, is not a recognized cause of action in California.^[2] He cites to Penal Code section 4025, but we see no indication in the statute itself and no authority for the notion that the statute creates a private right of action for its purported violation.

Further, as defendants point out, as a claim under state law, Andersen was required to plead compliance with the claim presentation requirements in the Government Code. He failed to do so and has not asserted that he can make this claim. Therefore, we find the demurrer was properly sustained without leave to amend.

III

DISPOSITION

The judgment is affirmed. Due to appellants indigent status, we decline to award costs.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1] Andersens complaint cites several times to the PPM, which, from context, we guess to be some sort of policy manual. This document is not, however, attached to the complaint, or elsewhere in the record that we can locate.

^[2] His citation to out-of-state cases with respect to this claim is unhelpful, as he specifically framed this action as one under California law.