Tyrone Parks v. Linda Rowe et al

Filing 12

MEMORANDUM AND ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order within whic h to file a Third Amended Complaint. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. Plaintiff is further advised that if he no longer wishes to purs ue this action, he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience. (See document for further details). (Attachments: # 1 Civil Rights Complaint Form, # 2 Notice of Dismissal Form) (mr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TYRONE PARKS, 12 Plaintiff, 13 14 ) ) ) ) ) ) ) ) ) ) v. LINDA ROWE, et al., 15 Defendants NO. CV 13-0173 MMM (SS) MEMORANDUM AND ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND 16 17 I. 18 INTRODUCTION 19 20 On March 14, 2013, Plaintiff Tyrone Parks filed a civil rights 21 complaint pursuant to 42 U.S.C. § 1983 against two employees of 22 Lancaster State Prison (“LSP”), where Plaintiff currently resides. 23 same day, Plaintiff filed a First Amended Complaint, which the Court 24 dismissed with leave to amend.1 25 Second Amended Complaint (“2AC”).2 The On April 23, 2013, Plaintiff filed a 26 27 28 1 Magistrate judges may dismiss a complaint with leave to amend without approval of the district judge. See McKeever v. Block, 932 F.2d 795, 795 (9th Cir. 1991). 2 The Proof of Service indicates that Petitioner delivered the 2AC to prison authorities for mailing on April 23, 2013. (2AC at 33). 1 Congress mandates that district courts initially screen civil 2 complaints filed by prisoners seeking redress from a governmental entity 3 or employee. 4 complaint, or any portions thereof, before service of process if the 5 Court concludes that the complaint (1) is frivolous or malicious, 6 (2) fails to state a claim upon which relief can be granted, or 7 (3) seeks monetary relief from a defendant who is immune from such 8 relief. 9 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc). 28 U.S.C. § 1915A(b). This Court may dismiss such a 28 U.S.C. § 1915A(b) (1)-(2); see also Lopez v. Smith, 203 F.3d 10 11 II. 12 ALLEGATIONS OF THE COMPLAINT 13 14 The Second Amended Complaint names as defendants Linda Rowe, senior 15 law librarian at LSP, and J. Curiel, Appeals Coordinator at LSP. (2AC at 16 2). 17 8). Both defendants are sued in their individual capacities. (Id. at 18 19 While Plaintiff’s claims are not entirely clear, the gravamen of 20 the Second Amended Complaint is that Defendants 21 improperly denied Plaintiff access to the LSP law library, thereby 22 preventing him from timely filing a petition for writ of certiorari with 23 the United States Supreme Court. 24 his petition was due on August 13, 2012. (Id. at 4-5). Rowe and Curiel Plaintiff alleges that (Id., Exh. D at 26). 25 26 27 28 Therefore, although the Court did not receive the 2AC until May 8, 2013, the Court applies the mailbox rule and deems the 2AC filed on April 23, 2013. In addition, to avoid confusion, the Court will cite to the 2AC, including exhibits, as if it were consecutively paginated. 2 1 Plaintiff claims that on June 6, 2012, he properly requested access 2 to the LSP law library on a Form 22 Request for Interview. (2AC at 4- 3 5). Forty-two days later, on July 18, 2012, Plaintiff filed a grievance 4 complaining that he had not received a response to his June 6 request. 5 (Id. at 5). 6 Plaintiff 7 Declaration.” 8 that same day, on July 24, 2012. 9 screened Plaintiff’s July 18 grievance on the ground that “Plaintiff 10 must first complete a Form 22 Request for Interview to it’s [sic] 11 highest level.” 12 Plaintiff admits that he was given access to the LSP law library on July 13 30, 2012. 14 library visit, the LSP law library closed from July 30, 2012 through 15 August 24, 2012 due to an institutional lockdown. (Id., Exh. C at 2). On July 24, 2012, while his grievance was pending, submitted a “Priority Legal User (PLU) Request and (Id., Exh. C at 1). Rowe granted Plaintiff’s PLU request (Id.). (Id. at 6). (2AC at 5). On July 27, 2012, Curiel Despite the screening of his grievance, However, evidently just after Plaintiff’s 16 17 Plaintiff contends that Rowe violated his First Amendment right of 18 access to the courts by not granting him access to the LSP law library. 19 (2AC at 9). 20 library, he would have been able to timely and successfully file his 21 petition for writ of certiorari. 22 identify the claims he allegedly anticipated presenting in his Supreme 23 Court petition or explain why additional library access was necessary 24 for him to file it. Plaintiff claims that had Rowe provided access to the law (Id.). However, Plaintiff does not 25 26 Plaintiff contends that Curiel violated his First Amendment right 27 of access to the courts as well as his Fourteenth Amendment right to Due 28 Process by “screen[ing] out” Plaintiff’s grievance through an “illegal 3 1 screen out” procedure. (Id.). According to Plaintiff, if Curiel had 2 processed Plaintiff’s grievance appropriately, Plaintiff would have been 3 able to timely and successfully petition for writ of certiorari. (Id.). 4 Plaintiff seeks compensatory damages of $800,000 and punitive damages of 5 $400,000 against each Defendant. (Id. at 10). 6 7 III. 8 DISCUSSION 9 10 Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss 11 Plaintiff’s Second Amended Complaint due to defects in pleading. Pro se 12 litigants in civil rights cases, however, must be given leave to amend 13 their complaints unless it is absolutely clear that the deficiencies 14 cannot 15 Accordingly, the Court grants Plaintiff leave to amend, as indicated 16 below. be cured by amendment. See Lopez, 203 F.3d at 1128-29. 17 18 A. Plaintiff Fails To State A Claim For Denial Of Access To The Courts 19 20 Prisoners have a constitutional right to meaningful access to the 21 courts. Silva v. DiVittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011). 22 The right of access to the courts protects prisoners’ right to file 23 civil actions that have “a reasonable basis in law or fact” without 24 “active interference” by the government. 25 quotation marks and emphasis omitted). 26 courts 27 assistance in the preparation of legal papers,” but does prohibit states 28 from “erecting barriers that impede the right of access of incarcerated “does not require prison Id. at 1102-03 (internal The right of access to the officials 4 to provide affirmative 1 persons,” such as by depriving prisoners of the “tools necessary to 2 challenge their sentences or conditions of confinement.” Id. at 1102-03 3 (internal brackets and quotation marks omitted). Therefore, the Supreme 4 Court has held that prison authorities must provide prisoners with 5 “adequate law libraries” to enable them to pursue their claims. 6 v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). Bounds 7 8 9 However, prisoners do not have a “freestanding right” to a law library. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Law 10 library access is relevant only as it pertains to a prisoner’s right to 11 have a “reasonably adequate opportunity to present claimed violations of 12 constitutional rights to the courts.” 13 351, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). 14 are not guaranteed unlimited law library access. 15 F.2d 517, 521 (9th Cir. 1991). 16 necessary prison regulations regarding the time, manner and place in 17 which library resources are used. 18 F.2d 851, 858 (9th Cir. 1985)). Lewis v. Casey, 518 U.S. 343, In addition, prisoners Johnson v. Moore, 948 Prisoners are subject to reasonable and Id. (citing Lindquist v. Idaho, 776 19 20 To state a claim for denial of access to the courts, prisoners must 21 allege an actual injury, i.e., that some official action has frustrated 22 or is impeding plaintiff’s attempt to bring a nonfrivolous legal claim. 23 Nevada Dept. of Corrections v. Greene, 648 F.3d 1014, 1018 (9th Cir. 24 2011). 25 action,3 a plaintiff must describe (1) a nonfrivolous underlying claim Specifically, in a “backward-looking” access to the courts 26 27 28 3 The Supreme Court distinguishes between “forward-looking” access to the courts claims, in which the plaintiff alleges that official action is frustrating plaintiff’s ability to prepare and file a suit at 5 1 that was allegedly compromised “to show that the ‘arguable’ nature of 2 the claim is more than hope”; (2) the official acts that frustrated the 3 litigation of that underlying claim; and (3) a “remedy available under 4 the access claim and presently unique to it” that could not be awarded 5 by bringing a separate action on an existing claim. 6 Harbury, 536 U.S. 403, 416, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002). Christopher v. 7 8 9 A missed filing deadline, by itself, is not enough to state an access to the courts claim. The plaintiff must identify his underlying 10 claim and show that it arguably had some merit. 11 Detroit, 715 F.3d 165, 178-79 (6th Cir. 2013) (plaintiff is not required 12 to 13 obstruction, 14 meritorious and not frivolous); Brewster v. Dretke, 587 F.3d 764, 769 15 (5th Cir. 2009) (failure to identify issue that plaintiff would have 16 presented to the court was fatal to his access to the courts claim); 17 Barbour v. Haley, 471 F.3d 1222, 1226 (11th Cir. 2006) (plaintiff 18 alleging denial of access to the courts must “identify within his 19 complaint[] a ‘nonfrivolous,’ ‘arguable’ underlying claim”) (quoting 20 Harbury, 536 U.S. at 415). 21 caused the deadline to be missed. 22 798 (9th Cir. 1994) (no actual injury where plaintiff requested library prove he would but have must won show underlying that the See Flagg v. City of claim claim was but at for government least arguably A plaintiff must also show how the defendant See Vandelft v. Moses, 31 F.3d 794, 23 24 25 26 27 28 the present time, and “backward-looking” claims, in which plaintiff alleges that due to official action, a specific case cannot now be tried, or be tried with all material evidence. In a backward-looking claim, plaintiff must allege facts showing that the official action resulted in the “loss of an opportunity to sue” or the “loss or inadequate settlement of a meritorious case.” Harbury, 536 U.S. at 41314. 6 1 resources after filing deadline had lapsed on one claim and did not show 2 how denial of access to resources for 57 days out of 365 caused 3 plaintiff’s failure to file the other claim); Entzi v. Redmann, 485 F.3d 4 998, 1005 (8th Cir. 2007) (affirming dismissal where the complaint did 5 not explain how the prison’s refusal to provide certain resources caused 6 the plaintiff to miss his filing deadline); Hayes v. Woodford, 444 F. 7 Supp. 2d 1127, 1134-35 (S.D. Cal. 2006) (no access to the courts claim 8 where plaintiff did not explain how insufficient resources actually 9 affected filing). 10 11 Here, Plaintiff’s allegations do not demonstrate that Defendants’ 12 acts or omissions hindered his efforts to pursue a nonfrivolous legal 13 claim. 14 library, Plaintiff would have timely and successfully filed his petition 15 for writ of certiorari. 16 identify the claims he purportedly intended to present in his petition 17 or explain why his anticipated success on those claims is based on 18 anything “more than hope.” 19 that Plaintiff had an unidentified claim that would have succeeded fails 20 to state an access to the courts claim. 21 Brewster, 587 F.3d at 769; Plaintiff contends that had Rowe provided access to the LSP law (Id. at 9). However, Plaintiff does not Harbury, 536 U.S. 416. The vague assertion See Flagg, 715 F.3d at 178-79; Barbour, 471 F.3d at 1226. 22 23 Moreover, according to the complaint, Rowe did grant Plaintiff 24 access to the law library. (2AC at 6). Plaintiff alleges that Rowe 25 became aware of his appeal at some point between June 6 and 27, 2012. 26 (Id. at 5). 27 library access on June 6, 2012, Plaintiff admits that he waited forty- 28 two days, until July 18, 2012, before filing a grievance when he did not Although Plaintiff states that he submitted a request for 7 1 receive a response. (Id. at 5 & Exh. E at 28). Plaintiff waited even 2 longer to renew his request for library access to Rowe. 3 documents show that Rowe immediately granted Plaintiff’s PLU status 4 request on July 24, 2012, the same day he submitted it. 5 Exh. C at 17). 6 status request on July 24, 2012 suggests that had Plaintiff renewed his 7 library access 8 Plaintiff further admits that he was “actually allowed into the Law 9 Library” on July 30, 2012, shortly after Rowe granted his PLU Request. 10 (Id. at 6). In addition, even though the library was closed immediately 11 after Plaintiff’s July 30, 2012 visit until August 24, 2012 due to an 12 institutional lockdown, Plaintiff had access to law library materials 13 before and during the lockdown via “the paging system through the 14 institutional mail.” 15 why the library visit he was actually granted and the other legal 16 resources available to him were inadequate, particularly when the 17 grounds for his legal claim(s) in his anticipated petition for writ of 18 certiorari presumably had already been presented to the lower courts. 19 The Second Amended Complaint fails to show how Rowe’s failure to respond 20 immediately to the June 6, 2012 access request was the cause of 21 Plaintiff’s failure to timely file his petition with the Supreme Court. Plaintiff’s own (Id. at 5 & The fact that Rowe immediately granted Plaintiff’s PLU request earlier, it would (Id., Exh. C at 2). have succeeded. (Id.). Plaintiff does not explain 22 23 Similarly, Plaintiff fails to allege facts showing that Curiel’s 24 allegedly improper screening of his grievance hindered Plaintiff’s 25 access to the courts. 26 improperly 27 concerning the lack of response to his June 6, 2012 law library access 28 request. screened Plaintiff states that on July 27, 2012, Curiel the (Id. at 9). grievance he had filed on July 18, 2012 However, Rowe granted Plaintiff PLU status on 8 1 July 24, 2012, thereby rendering Curiel’s screening on July 27, 2012 2 arguably moot. 3 library on July 30, 2012, only three days after the allegedly improper 4 screening. 5 via the paging system even during the lockdown. 6 such, Plaintiff fails to demonstrate how Curiel’s screening of his 7 grievance, even if erroneous or improper, had any effect at all on 8 Plaintiff’s ability to research his claims, much less that Curiel 9 impeded Plaintiff’s access to the courts and thereby caused him to miss 10 In addition, Plaintiff admits that he went to the (Id. at 6). Plaintiff also had access to library materials (Id., Exh. C at 2). As a filing deadline. 11 12 Plaintiff’s allegations against Defendants Rowe and Curiel fail to 13 show that either Defendant actually impeded Plaintiff’s access to the 14 courts or was the cause of Plaintiff’s failure to timely file his 15 Supreme Court petition. 16 be dismissed, with leave to amend. Accordingly, the Second Amended Complaint must 17 18 19 B. Plaintiff Fails To State A Claim Against Defendant Curiel For Screening Plaintiff’s Grievance 20 21 To state a claim under § 1983, a plaintiff must show that (1) the 22 action occurred “under color of state law” and (2) the action resulted 23 in the deprivation of a federal constitutional or statutory right. 24 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 25 existence 26 substantive rights enforceable under the Due Process Clause. See, e.g., 27 Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (“With respect 28 to the Due Process Clause, any right to a grievance procedure is a of a prison grievance 9 procedure does not However, the create any 1 procedural right, not a substantive one. 2 grievance procedures do not give rise to a liberty interest protected by 3 the Due Process Clause.”) (citations omitted); 4 1337, 1350 (11th Cir. 2005) (“State-created procedural rights that do 5 not guarantee a particular substantive outcome are not protected by the 6 Fourteenth Amendment, even where such procedural rights are mandatory.”) 7 (internal quotation marks omitted). 8 have a right to any particular grievance procedure or result. 9 e.g., Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“[I]nmates a separate constitutional Accordingly, a state’s inmate Doe v. Moore, 410 F.3d Consequently, an inmate does not entitlement to a specific See, 10 lack prison 11 grievance procedure.”) (citing Mann v. Adams, 855 F.2d 639, 640 (9th 12 Cir. 1988)); Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005) (an 13 inmate “does not have a federally protected liberty interest in having 14 . . . grievances resolved to his satisfaction”). 15 official’s failure to process a grievance, without more, is insufficient 16 to establish liability under section 1983. 17 F.2d 494, 495 (8th Cir. 1993). Moreover, a prison See Buckey v. Barlow, 997 18 19 Here, Plaintiff contends that Curiel “illegally” processed 20 Plaintiff’s grievance appeal by screening out the appeal and requesting 21 further documents in violation of “Plaintiff’s Fourteenth Amendment 22 Right to Due Process of Law.” 23 Plaintiff 24 grievance process or result. Accordingly, Plaintiff’s due process claim 25 against Curiel must be dismissed. 26 \\ 27 \\ 28 \\ does not have a (2AC at 6, 9). constitutional 10 However, as noted above, right to any particular 1 C. The Second Amended Complaint Fails To Satisfy Federal Rule Of Civil Procedure 8 2 3 4 Federal Rule of Civil Procedure 8(a)(2) requires that a complaint 5 contain “‘a short and plain statement of the claim showing that the 6 pleader is entitled to relief,’ in order to ‘give the defendant fair 7 notice of what the . . . claim is and the grounds upon which it rests.’” 8 Bell Atlantic Corp. V. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 9 L. Ed. 2d 929 (2007). Although detailed factual allegations are not 10 required, the Rule does call for sufficient factual matter, accepted as 11 true, to state a claim to relief that is plausible on its face. 12 Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 173 L. Ed. 2d 13 868. 14 allows the court to draw the reasonable inference that the defendant is 15 liable for the misconduct alleged.” (Id.). “A claim has facial plausibility when the pleaded factual content 16 17 The Second Amended Complaint does not comply with the standards of 18 Rule 8 because it does not clearly allege facts showing that Defendants 19 Rowe and Curiel were the cause of Plaintiff’s failure to timely file his 20 petition for writ of certiorari with the Supreme Court. 21 Plaintiff PLU status on July 24, 2012 and Plaintiff was granted library 22 access on July 30, 2012, despite Curiel’s screening of his grievance. 23 In addition, many of Plaintiff’s allegations concern the handling of his 24 grievance well after the August 13, 2012 deadline to file a petition 25 with the Supreme Court had passed. 26 Amended Complaint does not sufficiently demonstrate that Defendants’ 27 conduct prevented Plaintiff from filing his petition. (2AC at 6-8). 28 11 Rowe granted As such, the Second 1 IV. 2 CONCLUSION 3 4 For the reasons stated above, the Second Amended Complaint is 5 dismissed with leave to amend. If Plaintiff still wishes to pursue this 6 action, he is granted thirty (30) days from the date of this Memorandum 7 and Order within which to file a Third Amended Complaint. 8 amended complaint, the Plaintiff shall cure the defects described above. 9 The Third Amended Complaint, if any, shall be complete in itself and 10 shall bear both the designation “Third Amended Complaint” and the case 11 number assigned to this action. 12 previously filed complaint in this matter. In any It shall not refer in any manner to any 13 14 In any amended complaint, Plaintiff should confine his allegations 15 to those operative facts supporting each of his claims. Plaintiff is 16 advised that pursuant to Federal Rule of Civil Procedure 8(a), all that 17 is required is a “short and plain statement of the claim showing that 18 the pleader is entitled to relief.” Plaintiff is strongly encouraged to 19 utilize the standard civil rights complaint form when filing any amended 20 complaint, a copy of which is attached. 21 Plaintiff should make clear what specific factual allegations give rise 22 to his claims. 23 lacks a sufficient factual basis. 24 Complaint may not include new Defendants or claims not reasonably 25 related to the allegations in the Complaint. In any amended complaint, Plaintiff is advised to omit any claims for which he Furthermore, the Third Amended 26 27 Plaintiff is explicitly cautioned that failure to timely file a 28 Third Amended Complaint or otherwise respond to this Order may result in 12 1 a recommendation that this action be dismissed with prejudice for 2 failure to prosecute and obey Court orders pursuant to Federal Rule of 3 Civil Procedure 41(b). 4 several opportunities to state a claim based on essentially the same 5 facts, failure to correct the deficiencies identified above will result 6 in 7 pursuant to Federal Rule of Civil Procedure 12(b)(6). 8 further advised that if he no longer wishes to pursue this action, he 9 may voluntarily dismiss it by filing a Notice of Dismissal in accordance a recommendation Furthermore, because Plaintiff has already had that this action be dismissed 10 with Federal Rule of Civil Procedure 41(a)(1). 11 with prejudice Plaintiff is A form Notice of Dismissal is attached for Plaintiff’s convenience. 12 13 DATED: July 23, 2013 14 15 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 16 17 18 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED TO BE 19 INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS. 20 21 22 23 24 25 26 27 28 13

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