Pruitt #116045 v. Ryan et al

Filing 16

ORDER - Plaintiff's second 14 Application to Proceed In Forma Pauperis is granted. As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial f iling fee of $2.30. The 1 Complaint is dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1), and the Clerk of Court must enter judgment accordingly. The Clerk must make an entry on the docket stating that the dis missal for failure to state a claim may count as a "strike" under 28 U.S.C. § 1915(g). Plaintiff's 5 Motion for Appointment of Counsel is denied as moot. The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Judge David G Campbell on 10/06/2015. (ATD)

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MDR
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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Roy Pruitt,

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No. CV 15-01112-PHX-DGC (MHB)
Plaintiff,

v.

ORDER

Charles Ryan, et al.,
Defendants.

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On June 16, 2015, Plaintiff Roy Pruitt, who is confined in the Arizona State Prison

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Complex-Lewis in Buckeye, Arizona, filed a pro se civil rights Complaint pursuant to 42

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U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis. On June 23,

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2015, he filed a Motion for Appointment of Counsel (Doc. 5). On June 30, 2015,

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Plaintiff filed a Motion for an Order to Show Cause and a Motion for an Order

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Compelling Discovery.

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Application to Proceed and gave Plaintiff 30 days to pay the filing and administrative

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fees or file a complete Application to Proceed In Forma Pauperis.

In a July 6, 2015 Order, the Court denied the deficient

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On July 21, 2015, Plaintiff filed a Motion for Extension of Time, seeking a sixty-

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day extension of time to comply with the Court’s Order. In an August 10, 2015 Order,

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the Court granted the Motion for Extension of Time and denied without prejudice the

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Motion for an Order to Show Cause and the Motion for an Order Compelling Discovery.

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The Court gave Plaintiff 60 days to either pay the filing and administrative fees or file a

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complete Application to Proceed.

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On September 1, 2015, Plaintiff filed a Motion for Status of Application to

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Proceed In Forma Pauperis. In a September 18, 2015 Order, the Court granted the

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Motion for Status to the extent that the Court informed Plaintiff that the Court had not

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received an Application to Proceed or certified account statement from him.

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On September 22, 2015, Plaintiff filed a second Application to Proceed In Forma

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Pauperis (Doc. 14) and a certified account statement.

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Application to Proceed and will dismiss the Complaint and this action. In light of the

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Court’s dismissal of this action, the Court will deny as moot the Motion for Appointment

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of Counsel.

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I.

The Court will grant the

Second Application to Proceed In Forma Pauperis and Filing Fee

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Plaintiff’s second Application to Proceed In Forma Pauperis will be granted. 28

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U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C.

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§ 1915(b)(1). The Court will assess an initial partial filing fee of $2.30. The remainder

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of the fee will be collected monthly in payments of 20% of the previous month’s income

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credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00.

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28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate

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government agency to collect and forward the fees according to the statutory formula.

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II.

Statutory Screening of Prisoner Complaints

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or an officer or an employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

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has raised claims that are legally frivolous or malicious, that fail to state a claim upon

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which relief may be granted, or that seek monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2).

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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8

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does not demand detailed factual allegations, “it demands more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id.

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id. “Determining whether a complaint states a plausible

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claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

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on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

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specific factual allegations may be consistent with a constitutional claim, a court must

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assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

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at 681.

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But as the United States Court of Appeals for the Ninth Circuit has instructed,

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courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

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stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

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Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

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If the Court determines that a pleading could be cured by the allegation of other

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facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal

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of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).

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Plaintiff’s Complaint will be dismissed for failure to state a claim, without leave to

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amend because the defects cannot be corrected.

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III.

Complaint

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In his one-count Complaint, Plaintiff names as Defendants Arizona Department of

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Corrections Director Charles Ryan, Deputy Warden Morris, Correctional Officer

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IV/Grievance Coordinator Perez, Paralegal Ulibarri, and Librarian Ruboyianes. Plaintiff

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seeks declaratory and injunctive relief, monetary damages, a jury trial, and his costs of

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suit.

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Plaintiff alleges that he was denied access to the courts, in violation of his Sixth

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and Fourteenth Amendment rights. Plaintiff alleges that on July 3, 2013, he requested

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indigent legal supplies from Defendants Ulibarri and Ruboyianes. He claims that on

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July 9, 2013, Defendant Ruboyianes notified Plaintiff that his request had been denied,

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even though Plaintiff had clearly indicated in his request that he had a July 18, 2013

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deadline to file an amended supplemental brief.

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Ruboyianes denied Plaintiff’s request again on July 15, 2013.

Plaintiff asserts that Defendant

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Plaintiff contends that Defendant Ruboyianes came to Plaintiff’s cell on July 18,

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2013 (the deadline for filing the amended supplemental brief), and demanded proof that

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Plaintiff had an active court case. Plaintiff showed Defendant Ruboyianes an order that

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set a deadline to file a supplemental brief in Plaintiff’s direct appeal.

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Ruboyianes told Plaintiff that it would take two weeks for Plaintiff to get his legal

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supplies. This caused Plaintiff to miss the deadline.

Defendant

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Plaintiff also asserts that he filed an inmate grievance with Defendant Perez, but it

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was returned unprocessed. Plaintiff’s appeal to the warden and appeal to the director

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were “intercepted” by Defendant Perez and returned to Plaintiff “in an attempt to stop

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[Plaintiff] from accessing the courts.”

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Plaintiff contends that Defendants Ulibarri and Ruboyianes interfered with his

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access to the courts and caused him to miss a court-ordered deadline. He also claims that

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Defendant Perez tried to stop Plaintiff’s access to the courts and that Defendants Ryan

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and Morris “allowed these actions by not enforcing Department Policy.”

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IV.

Failure to State a Claim

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Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey

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v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a

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liberal interpretation of a civil rights complaint may not supply essential elements of the

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claim that were not initially pled. Id.

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....

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To state a valid claim under § 1983, plaintiffs must allege that they suffered a

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specific injury as a result of specific conduct of a defendant and show an affirmative link

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between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362,

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371-72, 377 (1976).

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therefore, a defendant’s position as the supervisor of persons who allegedly violated

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Plaintiff’s constitutional rights does not impose liability. Monell v. New York City Dep’t

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of Soc. Servs., 436 U.S. 658, 691-92 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067

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(9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Because vicarious

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liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each

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Government-official defendant, through the official’s own individual actions, has

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violated the Constitution.” Iqbal, 556 U.S. at 676. “A plaintiff must allege facts, not

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simply conclusions, that show that an individual was personally involved in the

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deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

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1998).

There is no respondeat superior liability under § 1983, and

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The right of meaningful access to the courts prohibits officials from actively

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interfering with inmates’ attempts to prepare or file legal documents. Lewis v. Casey,

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518 U.S. 343, 350 (1996).

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Amendments to litigate their claims “without active interference by prison officials.”

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Silva v. DiVittorio, 658 F.3d 1090, 1103 (9th Cir. 2011) (emphasis in original).

Prisoners have a right under the First and Fourteenth

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As a matter of standing for an access-to-courts claim, a plaintiff must show that he

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suffered an “actual injury”—i.e., “actual prejudice with respect to contemplated or

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existing litigation, such as the inability to meet a filing deadline or to present a claim.”

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Lewis, 518 U.S. at 348 (citation omitted). See Davis v. Goord, 320 F.3d 346, 352 (2d Cir.

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2003) (“Mere ‘delay in being able to work on one’s legal action or communicate with the

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courts does not rise to the level of a constitutional violation.’”) (citations omitted); cf.

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Silva, 658 F.3d at 1104 (actual injury alleged where plaintiff claimed pending lawsuits

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had been dismissed as the result of defendants’ actions). Where, as here, a prisoner is

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asserting a backward-looking denial of access claim—one that seeks a remedy for a lost

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opportunity to present a legal claim—he must show, among other things, “the loss of a

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‘nonfrivolous’ or ‘arguable’ underlying claim.” Phillips v. Hust, 477 F.3d 1070, 1076

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(9th Cir. 2007), vacated on other grounds, 555 U.S. 1150 (2009).

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Although Plaintiff may have missed the deadline to file his amended supplemental

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brief, he suffered no injury. In a Memorandum Decision issued by the Arizona Court of

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Appeals in Plaintiff’s direct criminal appeal, Arizona v. Pruitt, CA-CR 12-0625 (Ariz. Ct.

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App. 2013),1 the Arizona Court of Appeals noted that Plaintiff had filed an “untimely

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amended supplemental brief” on August 26, 2013. Id. at ¶10 n.4. However, the Arizona

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Court of Appeals stated that “[g]iven the nature of an Anders appeal, the arguments in

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Pruitt’s August 26, 2013 brief have been considered on the merits.” Id. (emphasis

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added). The Arizona Court of Appeals identified the issues Plaintiff asserted in his

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supplemental briefs, id. at ¶10, and stated that it had “read and considered counsel’s brief

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and Pruitt’s supplement[al] briefs, and ha[d] search the record provided for reversible

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error,” but had found none. Id. at ¶24 (emphasis added). Because the Arizona Court of

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Appeals considered and addressed on the merits the issues raised in Plaintiff’s untimely

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amended supplemental brief, Plaintiff suffered no injury from missing the filing deadline.

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Thus, the Court will dismiss Plaintiff’s access-to-the-courts claim.

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In addition, to the extent Plaintiff is raising a claim based on Defendant Perez’s

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failure to process his grievances, he has failed to state a claim. “There is no legitimate

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claim of entitlement to a grievance procedure,” Mann v. Adams, 855 F.2d 639, 640 (9th

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Cir. 1988), and the failure to follow grievance procedures does not give rise to a due

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process claim. See Flournoy v. Fairman, 897 F. Supp. 350, 354 (N.D. Ill. 1995) (jail

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grievance procedures did not create a substantive right enforceable under § 1983);

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Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986) (violations of grievance

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system procedures do not deprive inmates of constitutional rights). “[N]o constitutional

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right was violated by the defendants’ failure, if any, to process all of the grievances

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See http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2013/1%20CA-CR%2
012-0625-171710.pdf (last accessed Oct. 1, 2015).
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[plaintiff] submitted for consideration.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.

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1993). In addition, “[t]he right to petition the government for redress of grievances . . .

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does not guarantee a favorable response, or indeed any response, from state officials.

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Moreover, the First Amendment’s right to redress of grievances is satisfied by the

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availability of a judicial remedy.” Baltoski v. Pretorius, 291 F. Supp. 2d 807, 811 (N.D.

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Ind. 2003); see also Ashann-Ra v. Virginia, 112 F. Supp. 2d 559, 569 (W.D. Va. 2000)

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(failure to comply with state’s grievance procedure is not actionable under § 1983 and

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does not compromise an inmate’s right of access to the courts). Thus, the Court will

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dismiss Plaintiff’s claim regarding the grievance process.

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Finally, because Defendants Ruboyianes, Ulibarri, and Perez did not violate

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Plaintiff’s constitutional rights, Plaintiff’s claim that Defendants Ryan and Morris

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“allowed these actions by not enforcing Department Policy,” also fails.

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IT IS ORDERED:

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(1)

Plaintiff’s second Application to Proceed In Forma Pauperis (Doc. 14) is

granted.

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(2)

As required by the accompanying Order to the appropriate government

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agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing

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fee of $2.30.

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(3)

28 U.S.C. § 1915A(b)(1), and the Clerk of Court must enter judgment accordingly.

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The Complaint (Doc. 1) is dismissed for failure to state a claim pursuant to

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The Clerk of Court must make an entry on the docket stating that the

dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).

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(5)

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Plaintiff’s Motion for Appointment of Counsel (Doc. 5) is denied as moot.

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(6)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of

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this decision would not be taken in good faith.

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Dated this 6th day of October, 2015.

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