Glenn Bosworth v. David Escalante et al
Filing
3
MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. the Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order within which to file a First Amended Complaint. Plaintiff is further advised that if he no longer wishes to pursue 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 Plaintiffs convenience. (See document for further details). (Attachments: # 1 CIVIL RIGHTS COMPLAINT FORM, # 2 NOTICE OF DISMISSAL) (mr)
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UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11 GLENN BOSWORTH,
12
13
Plaintiff,
v.
14 DAVID ESCALANTE, et al.,
15
16
Defendants.
)
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NO. CV 13-2924 DMG (SS)
MEMORANDUM AND ORDER DISMISSING
COMPLAINT WITH LEAVE TO AMEND
17
18
I.
19
INTRODUCTION
20
21
On April 25, 2013, Plaintiff, a federal prisoner proceeding pro se,
22 filed a civil complaint against certain named and unnamed employees of
23 the Federal Correctional Institution (“FCI”) in Lompoc, California,
24 alleging violations of (1) his civil rights pursuant to Bivens v. Six
25 Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388,
26 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); (2) the Racketeer Influenced
27 and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1503, 1509, 1512 &
28 1513; and (3) Federal Bureau of Prisons (“BOP”) regulations codified at
1 28 C.F.R. §§ 543.13 - 543.14.
For the reasons stated below, the
2 Complaint is dismissed with leave to amend.1
3
4
Congress mandates that district courts initially screen civil
5 complaints filed by a prisoner seeking redress from a governmental
6 entity or employee.
28 U.S.C. § 1915A(a).
This Court may dismiss such
7 a complaint, or any portions thereof, before service of process if the
8 Court concludes that the complaint (1) is frivolous or malicious,
9 (2) fails to state a claim upon which relief can be granted, or
10 (3) seeks monetary relief from a defendant who is immune from such
11 relief.
28 U.S.C. § 1915A(b)(1)-(2); see also Lopez v. Smith, 203 F.3d
12 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc).
13
14
II.
15
ALLEGATIONS OF THE COMPLAINT
16
17
Plaintiff sues three named employees of FCI-Lompoc:
(1) Officer
18 David Escalante, (2) Lieutenant Mitchell, and (3) Lieutenant Duden.
19 (Complaint at 6).
20 capacity only.
21 1-20.”
All named Defendants are sued in their individual
(Id.).
In addition, Plaintiff sues “John and Jane Does
(Id. at 6-7).
22
23
Plaintiff generally alleges that Escalante, Mitchell and Duden
24 intentionally and maliciously interfered with his “inalienable right” to
25 meet with counsel before he filed a pro se petition for writ of
26
27
1
Magistrate Judges may dismiss a complaint with leave to amend
without approval of the District Judge. See McKeever v. Block, 932 F.2d
28
795, 798 (9th Cir. 1991).
2
1 certiorari with the Supreme Court on direct appeal.
(Id. at 9).
2 Specifically, Plaintiff states that he hired private counsel to review
3 his draft petition approximately six or seven weeks before the Supreme
4 Court filing deadline of October 20, 2012.
(Id. at 25 & 43).
The
5 petition raised an “important issue” of “first impression” concerning
6 whether the public trial guarantee applies to sentencing proceedings,
7 which Plaintiff states were closed in his case.
(Id. at 21).
Plaintiff
8 anticipated that if the petition were granted and the Supreme Court
9 ordered a new sentencing hearing, he would then have the opportunity to
10 challenge the validity of the charges to which he had pled guilty based
11 on newly discovered evidence uncovered during his appeal to the Ninth
12 Circuit.
(Id. at 22).
Escalante approved the addition of counsel to
13 Plaintiff’s list of authorized visitors.
(Id. at 13).
Counsel made
14 several attempts to contact Escalanate to arrange for a visit to the
15 prison, but Escalante did not return counsel’s calls or respond to
16 counsel’s faxed request.
(Id. at 14).
17
18
On Tuesday, September 18, 2012, Escalante called Plaintiff to his
19 office and told him that counsel could visit only on the prison’s
20 regular visiting days, i.e., Saturdays, Sundays and Mondays.
21 15).
(Id. at
Plaintiff called counsel from Escalante’s office in Escalante’s
22 presence using
speakerphone.
Counsel
told
Plaintiff
that
he had
23 coincidentally just arrived at the prison because he had been told the
24 previous day that attorneys were permitted to meet with their clients at
25 the prison any day of the week, not just regular visiting days.
(Id.).
26 Escalante told counsel that he could visit only on Saturdays, Sundays
27 and Mondays.
Escalante also demanded to know who had informed counsel
28 he could visit during the week and told counsel that he would call him
3
1 back shortly.
(Id.).
Escalante consulted with Duden, who told him that
2 “if there was not a memorandum from our Legal Department concerning this
3 visit, it was not going to happen.”
(Id. at 23).
4
5
Counsel waited in the prison parking lot for Escalante’s call.
As
6 he was waiting, “two armed Federal Officers” ordered counsel to leave
7 the premises.
Counsel complied with the order.
8 returned to the prison several hours later.
(Id. at 16).
Counsel
Escalante spoke to counsel
9 in the reception office, where he and counsel agreed that counsel could
10 meet with Plaintiff on Sunday, September 23, 2012 for an authorized
11 legal visit.
(Id.).
12
13
On September 23, 2012, counsel arrived at the prison but was told
14 that Plaintiff had not been approved for a legal visit on that day.
15 (Id. at 16 & 25).
Mitchell permitted counsel to meet with Plaintiff
16 only as a regular visitor.
Because Mitchell did not permit counsel to
17 see Plaintiff for a “legal visit,” counsel could not bring his work
18 product with him or use the designated private meeting room normally
19 reserved for attorney visits.
(Id.).
Due to the “lack of work product
20 and privacy, Plaintiff and his counsel could not discuss the substantive
21 aspects” of Plaintiff’s draft petition during their visit. (Id. at 17).
22
23
During this period, Plaintiff asked Escalante if he could arrange
24 for a telephone call to counsel on a secure, unrecorded line.
(Id.).
25 Escalante told Plaintiff that he would allow only a single, fifteen26 minute call.
Plaintiff argues that this was insufficient time to
27 discuss his petition in detail and notes that mail communications would
28
4
1 not permit a thorough analysis of the petition either because of the
2 four- to seven-day turnaround in the prison mail system.
(Id.).
3
4
Plaintiff’s counsel sent a letter to the prison warden the week
5 after meeting with Plaintiff as a regular visitor on September 23, 2012
6 and as a result was allowed to have a legal visit with Plaintiff on
7 October 14, 2012.
(Id.).
By that date, however, Plaintiff had already
8 mailed out his petition to meet the Supreme Court’s October 20, 2012
9 filing deadline.
(Id.).
10
11
Plaintiff’s Supreme Court petition was timely filed and considered.
12 (Id. at 18).
13 7, 2013.
However, the Court denied Plaintiff’s petition on January
(Id.).
Plaintiff maintains that if he had not been denied
14 counsel’s input, the petition would have been granted.
(Id.).
15
16
Also during this period, Plaintiff claims that he was “threatened
17 with being beaten if he continued to eat his meals at certain dining
18 tables” or “to watch specific televisions.”
(Id. at 31).
In addition,
19 Plaintiff’s family was required to pay extortion money to keep him from
20 physical harm.
(Id. at 31).
Even though the threats of physical
21 violence and extortion were apparently made directly by other prisoners,
22 Plaintiff claims that “some of the threats began by information from
23 ‘Institution staff.’”
24 threats,
that
staff
Plaintiff believes, based on the timing of the
disclosed
sensitive
information
about
him
in
25 retaliation for his having filed administrative grievances relating to
26 the denial of counsel.
(Id.).
27
28
5
1
Plaintiff claims that the prison’s interference with counsel’s
2 attempts to meet with him violated his Sixth Amendment right to counsel,
3 (id. at 20),
his First Amendment right to petition the government, (id.
4 at 27-28), his Fifth Amendment due process and equal protection rights,
5 (id. at 29-30), and his Eighth Amendment right to be free from cruel and
6 unusual punishment.
(Id. at 30-31).
Plaintiff also claims that
7 Escalante, Duden and Mitchell violated criminal provisions of RICO by
8 impeding the due administration of justice, obstructing the exercise of
9 his
rights,
using
threats
of
physical
force
to
prevent
or
delay
10 testimony, and retaliating against him as a witness in an official
11 proceeding.
12 1513).
(Id. at 35-37) (citing 18 U.S.C. §§ 1503, 1509, 1512 &
Finally,
Plaintiff
claims
that
Escalante
violated
prison
13 regulations governing attorney visits, codified at 28 C.F.R. §§ 543.13 14 543.14.
(Id. at 22-24 & 37).
Plaintiff seeks $179,072,575.00 in
15 compensatory damages to be paid jointly and severally by all named and
16 unnamed Defendants.
(Id. at 39).
17
18
III.
19
DISCUSSION
20
21
Pursuant
to
28
U.S.C.
§
1915A(b),
the
22 Plaintiff’s Complaint due to defects in pleading.
Court
must
dismiss
Pro se litigants,
23 however, must be given leave to amend their complaints unless it is
24 absolutely clear that the deficiencies cannot be cured by amendment.
25 See Lopez, 203 F.3d at 1128-29. Accordingly, the Court grants Plaintiff
26 leave to amend, as indicated below.
27 \\
28 \\
6
1 A.
The Complaint Fails To State An Access To The Courts Claim
2
3
The gravamen of the Complaint is that prison employees wrongfully
4 prevented Plaintiff from meeting with counsel and thereby impaired the
5 presentation of his claims to the Supreme Court in a petition for writ
6 of
certiorari.
(See,
e.g.,
id.
at
27-28).
Prisoners
7 constitutional right to meaningful access to the courts.
8 DiVittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011).
have
a
Silva v.
The right of access
9 to the courts arises from the Privileges and Immunities Clause of
10 Article IV, the First Amendment right to petition, and the Due Process
11 and Equal
Protection
12 Amendments.2
rights
accorded
by
the
Fifth
and
Fourteenth
Christopher v. Harbury, 536 U.S. 403, 415 & n.12, 122 S.
13 Ct. 2179, 153 L. Ed. 2d 413 (2002) (citing cases); United States v.
14 Wilson, 690 F.2d 1267, 1271–72 (9th Cir. 1982).
The right of access to
15 the courts protects prisoners’ right to file civil actions that have “a
16 reasonable basis in law or fact” without “active interference” by the
17 government.
18 omitted).
Id. at 1102-03 (internal quotation marks and emphasis
The right of access to the courts includes the right to
19 in-person (or “contact”) visits with counsel.
Ching v. Lewis, 895 F.2d
20 608, 610 (9th Cir. 1990) (per curiam).
21
22
23
24
2
The Complaint appears to attempt to allege separate claims for
25 violations of Plaintiff’s right to counsel under the Sixth Amendment,
his petition rights under the First Petition, and his due process and
26 equal protection rights under the Fifth Amendment. (Complaint at 9-10).
However, all of these claims are based on the same operative facts and
27 merely reflect the various sources of the right of access to the courts.
28 Therefore, the Court will address all of those “separate” claims here
under the rubric of “access to the courts.”
7
1
However, prisoners’ right of access to the courts is not absolute.
2 Specifically, the right to “contact visitation with counsel” may be
3 “limited
if
prison
officials
can
show
that
such
limitations
4 reasonably related to legitimate penological interests.”
are
Barnett v.
5 Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (internal quotation marks
6 omitted); see also Casey v. Lewis, 4 F.3d 1516, 1523 (9th Cir. 1993)
7 (prison policy prohibiting attorney contact visits entirely for certain
8 categories of prisoners did not violate constitution); Keenan v. Hall,
9 83 F.3d 1083, 1094 (9th Cir. 1996) (prison may deny high-risk inmates
10 contact visits with counsel where other means of communication with
11 counsel exist); Johnson v. County of Wayne, 2008 WL 4279359 at *6 (E.D.
12 Mich. Sept. 16, 2008) (right to reasonable access to the courts does not
13 require prison to provide ideal conditions for attorney interviews);
14 Schick v. Apker, 2009 WL 2016933 at *10 (S.D. N.Y. Mar. 5, 2009) (“The
15 Constitution
simply
does
not
guarantee
Plaintiff
unlimited
16 communications with several attorneys, or the means of communication
17 that Plaintiff might consider the most convenient or productive.”).
18
19
To state a claim for denial of access to the courts, prisoners must
20 allege an actual injury, i.e., that some official action has frustrated
21 or is impeding plaintiff’s attempt to bring a nonfrivolous legal claim.
22 Nevada Dept. of Corrections v. Greene, 648 F.3d 1014, 1018 (9th Cir.
23 2011).
Specifically, in a “backward-looking” access to the courts
24 action,3 a plaintiff must describe (1) a nonfrivolous underlying claim
25
26
3
The Supreme Court distinguishes between “forward-looking” access
to the courts claims, in which the plaintiff alleges that official
27 action is frustrating plaintiff’s ability to prepare and file a suit at
28 the present time, and “backward-looking” claims, in which plaintiff
alleges that due to official action, a specific case cannot now be
8
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.
Christopher, 536
6 U.S. at 416.
7
8
Here, because Plaintiff actually filed his underlying petition with
9 the Supreme Court, the Complaint must show how Defendants’ actions
10 impaired the presentation of his claims to a degree that Plaintiff was
11 denied effective and meaningful access to the courts.
Plaintiff admits
12 that he was able to meet in person with counsel on September 23, 2012,
13 albeit as a regular visitor.
(Complaint at 16-17).
Plaintiff further
14 admits that Escalante agreed to allow him a 15-minute call to discuss
15 his petition with counsel and that Plaintiff could communicate with
16 counsel by mail within four to seven days, although Plaintiff does not
17 allege that he took advantage of these opportunities.
(Id. at 17).
18 Finally, Plaintiff admits that he met with counsel in a legal visit on
19 October 14, 2012, six days before the Supreme Court filing deadline.
20 (Id.).
However, Plaintiff fails to:
(1) identify how his petition
21 would have been materially different had he met with counsel in private
22 before October 14, 2012, (2) explain why Defendants’ actions were not
23 reasonably related to FCI-Lompoc’s penological interests, or (3) show
24 that he had no other effective means of communicating with counsel.
25
26 tried, or be tried with all material evidence. In a backward-looking
claim, plaintiff must allege facts showing that the official action
27 resulted in the “loss of an opportunity to sue” or the “loss or
28 inadequate settlement of a meritorious case.” Christopher, 536 U.S. at
413-14.
9
1 See, e.g., White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (affirming
2 dismissal
with
leave
to
amend
where
access
claim
was
based
on
3 speculation that the materials which plaintiff wished to send to counsel
4 at prison’s expense “might have helped counsel” but did not “contain any
5 factual allegations” showing specific detriment to his appeal); Keenan,
6 83 F.3d at 1094 (no violation shown where prisoner did not “allege[]
7 that the denial of contact visits with his lawyer has denied him access
8 to his lawyer or prejudiced his access to the courts”).
Accordingly,
9 the Complaint must be dismissed with leave to amend.
10
11 B.
The Complaint Fails To State A Cruel And Unusual Punishment Claim
12
13
Plaintiff asserts that Defendants’ interference somehow violated
14 his Eighth Amendment right to be free from cruel and unusual punishment.
15 (Complaint at 30-31).
Only the “‘unnecessary and wanton infliction of
16 pain’” constitutes cruel and unusual punishment forbidden by the Eighth
17 Amendment.
Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 89 L.
18 Ed. 2d 251 (1986) (citations omitted).
19 claim,
a
prisoner
must
allege
that
To state an Eighth Amendment
prison
officials
acted
20 deliberate indifference to a substantial risk of serious harm.
with
Farmer
21 v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)
22 (citations omitted).
Prison officials manifest deliberate indifference
23 if they know of and disregard an excessive risk to an inmate’s safety or
24 health.
Id. at 837.
25
26
Here, Plaintiff alleges only that Defendants “caused Plaintiff to
27 be confined and remain in Federal custody, thereby depriving Plaintiff
28 of his liberty interests . . . in violation of the Cruel and Unusual
10
1 Punishment provisions within the Eighth Amendment.”
(Complaint at 30).
2 However, Plaintiff does not allege that he was actually subjected to
3 physical harm or show how Defendants’ alleged interference with his
4 meetings with counsel subjected his safety or health to an excessive
5 risk of harm.
Accordingly, the Complaint must be dismissed with leave
6 to amend.
7
8 C.
The Complaint Fails To State A Retaliation Claim
9
10
Plaintiff alleges that during the period in which he was attempting
11 to meet with counsel, he was also subject to threats of physical
12 violence and extortion, presumably by other prisoners.
13 31).
According
to
Plaintiff,
although
the
threats
(Complaint at
specifically
14 concerned where he could sit in the dining hall and which televisions he
15 could watch, the “timing of the several threats and extortion is too
16 coincidental
to
not
be
applicable
to
this
case.”
(Id.
at
33).
17 Plaintiff therefore concludes that the threats were “initiated by an
18 Institution
staff
member”
who
“illegally
disclosed
sensitive
19 information” about Plaintiff to these prisoners in retaliation for the
20 grievance Plaintiff filed alleging interference with his right to
21 consult with counsel.
(Id. at 33-34).
In addition, Plaintiff states
22 that Escalante “threatened” him by accusing him of lying about having
23 told counsel when he could visit, which Escalante stated merited an
24 incident report.
(Id. at 32).
25
26
A prisoner “retains those First Amendment rights that are not
27 inconsistent with his status as a prisoner or with the legitimate
28 penological objectives of the corrections system.”
11
Pell v. Procunier,
1 417 U.S. 817, 822, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974).
Among those
2 rights is the right to file prison grievances and the right to pursue
3 civil rights litigation in the federal courts.
4 F.3d 559, 567 (9th Cir. 2005).
Rhodes v. Robinson, 408
Because actions taken to retaliate
5 against prisoners who exercise those rights “necessarily undermine those
6 protections, such actions violate the Constitution quite apart from any
7 underlying misconduct they are designed to shield.”
Id.
To state a
8 claim for First Amendment retaliation, a prisoner must allege the
9 following five elements: (1) a state actor took an adverse action
10 against him (2) because of (3) the prisoner’s protected conduct, and
11 that the action taken against him (4) chilled the prisoner’s exercise of
12 his
First
Amendment
Rights
13 legitimate correctional goal.
and
(5)
did
not
reasonably
advance
a
See id. at 567–68.
14
15
To prevent dismissal of a claim, a plaintiff must articulate
16 “enough facts to state a claim to relief that is plausible on its face.”
17 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167
18 L. Ed. 2d 929 (2007).
In addition, the “[f]actual allegations must be
19 enough to raise a right to relief above the speculative level.”
20 555.
Id. at
Plaintiff’s speculation that there “must be” a connection between
21 his filing of a grievance and the threats of physical violence directed
22 toward him by other prisoners is insufficient to state a retaliation
23 claim against an unknown “Institution staff member.”
In addition,
24 Escalante’s “threat” that Plaintiff “can/should be written an incident
25 report” for having lied to a staff member was an observation that
26 Escalante
made
to
a
correctional
counselor
who
27 Plaintiff’s grievance, not to Plaintiff himself.
28 Furthermore,
Escalante
tempered
even
12
this
was
investigating
(See id. at 52).
observation
by
noting
1 “Regardless [of whether Plaintiff is or is not telling the truth about
2 what he told counsel], inmate Bosworth and Attorney Bruno obviously have
3 some communication issues based on what they both told me on the day in
4 question . . . .”
(Id.).
On these facts, Plaintiff has not plausibly
5 alleged that Escalante retaliated against Plaintiff or that his “threat”
6 chilled the exercise of Plaintiff’s constitutional rights. Accordingly,
7 the Complaint must be dismissed with leave to amend.
8
9 D.
The Complaint Fails To State A RICO Claim
10
11
Plaintiff alleges that Defendants violated several criminal laws
12 under RICO.
(Complaint at 35-37).
Specifically, Plaintiff states that
13 Defendants violated 18 U.S.C. § 1503 (intimidation of juror or officer
14 of the court to impede administration of justice); § 1509 (interference
15 with the exercise of rights or performance of duties under any order,
16 judgment, or decree of a court of the United States);
§ 1512 (use of
17 physical force or threat of physical force to influence, delay or
18 prevent the testimony of any person in an official proceeding); and
19 §
1513
(retaliation
20 proceeding).
for
testimony
by
a
witness
in
an
official
(Complaint at 35-37).
21
22
Plaintiff’s RICO claims are not well-taken. In the first instance,
23 the facts alleged do not support charges under these statutes because
24 there was no pending court proceeding, Plaintiff was not exercising
25 rights accorded to him under a decree or judgment of a court, and no
26 testimony was given or anticipated in an official proceeding.
27 importantly, only a prosecutor can bring criminal charges.
Criminal
28 statutes do not provide for private civil causes of action.
13
More
See
1 generally Diamond v. Charles, 476 U.S. 54, 64–65, 106 S. Ct. 1697, 90 L.
2 Ed. 2d 48 (1986) (private citizens cannot compel enforcement of criminal
3 law).
4
5
Furthermore, Plaintiff cannot even state a claim under RICO’s civil
6 remedy section, which “requires as a threshold for standing an injury to
7 ‘business or property.’”
8 2010); see also
Avalos v. Baca, 596 F.3d 583, 592 (9th Cir.
18 U.S.C. § 1964(c).
To state a civil RICO claim, a
9 plaintiff must allege harm to business or property through (1) conduct
10 (2) of an enterprise (3) through a pattern (4) of racketeering activity.
11 Miller v. Yokohama Tire Corp., 358 F.3d 616, 620 (9th Cir. 2004).
12 “Without a harm to a specific business or property interest -- a
13 categorical inquiry typically determined by reference to state law -14 there is no injury to business or property within the meaning of RICO.”
15 Diaz v. Gates, 420 F.3d 897, 898 (9th Cir. 2005).
Plaintiff does not
16 and cannot allege that Defendants’ alleged acts harmed his business or
17 property.
Accordingly, Plaintiff’s RICO claims must be dismissed.
See
18 Bowen v. Oistead, 125 F.3d 800, 806 (9th Cir. 1997) (civil rights
19 violations
20 activity”);
do
not
Silva,
fall
658
within
F.3d
the
at
definition
1105-06
of
(affirming
“racketeering
dismissal
of
21 prisoner’s RICO claim without leave to amend where predicate act was not
22 criminal, even though the act alleged stated a claim for violation of
23 prisoner’s right to access to the court).
Plaintiff is cautioned
24 against the inclusion of claims in any amended complaint that cannot be
25 supported by credible factual allegations.
26
27
28
14
1 E.
The
Complaint
2
Fails
To
State
A
Claim
For
Violation
Of
BOP
Regulations
3
4
Plaintiff argues at length that Escalante’s actions violated BOP
5 regulations governing attorney visits, codified at 28 C.F.R. §§ 543.13 6 543.14.
(Complaint at 3, 23-24, 37).
Because the caption of the
7 Complaint indicates that Plaintiff is filing this action pursuant to
8 those regulations, the Court presumes that Plaintiff is attempting to
9 state a separate claim for Defendants’ alleged regulatory violations.
10 (See id. at 1).
11
12
Sections 543.13 and 543.14 “generally empower a warden to establish
13 the terms and conditions of attorney visitation privileges, and to
14 restrict
those
15 security.”
privileges
should
an
attorney
threaten
institution
Sturm v. Clark, 835 F.2d 1009, 1011 n.5 (3d Cir. 1987).
16 While the regulations provide that the warden “generally may not limit
17 the frequency of attorney visits,” they specifically authorize the
18 warden to “set the time and place for visits, which ordinarily take
19 place during regular visiting hours.”
28 C.F.R. § 543.13(b).
20
21
Whether or not Defendants’ actions violated sections 543.13 and
22 543.14, however, Plaintiff may not raise a separate claim for their
23 breach because the regulations do not provide for a private cause of
24 action.
See, e.g.,
Alexander v. Sandoval, 532 U.S. 275, 291, 121 S.
25 Ct. 1511, 149 L. Ed. 2d 517 (2001) (“Language in a regulation may invoke
26 a private right of action that Congress through statutory text created,
27 but it may not create a right that Congress has not.”); Opera Plaza
28 Residential Parcel Homeowners Ass’n v. Hoang, 376 F.3d 831, 836 (9th
15
1 Cir. 2004) (“[I]t is the relevant laws passed by Congress, and not rules
2 or regulations passed by an administrative agency, that determine
3 whether an implied cause of action exists.”); Schick, 2009 WL 2016933 at
4 *7-8 (28 C.F.R. §§ 543.13 and 540.103 “do not explicitly provide for a
5 private right of action, nor is there any indication that Congress
6 intended to create an implied private right of action); Hoffenberg v.
7 Fed. Bureau of Prisons, 2004 WL 2203479 at *2 (D. Mass. Sept. 14, 2004)
8 (28 C.F.R. §§ 540.103, 543.12, and 545.10 “[o]n their face, . . . do not
9 provide for a private right of action and there is no indication that
10 Congress intended them to create an implied private right of action”).
11 Nor would a violation of BOP regulations, in and of itself, constitute
12 a constitutional violation.
See Hovatar v. Robinson, 1 F.3d 1063, 1068
13 n.4 (10th Cir. 1993) (violation of a prison regulation “does not equate
14 to a constitutional violation”); Edwards v. Johnson, 209 F.3d 772, 779
15 (5th Cir. 2000) (“[A] violation of prison regulations in itself is not
16 a constitutional violation”). Accordingly, to the extent that Plaintiff
17 is attempting to state a separate cause of action under 28 C.F.R.
18 §§ 543.13 and 543.14, the Complaint must be dismissed.
19
20 F.
The Complaint Fails To State A Claim Against The Doe Defendants
21
22
The Complaint also sues “John and Jane Does 1-20,” whom Plaintiff
23 states “may or may not include additional Federal employees . . .
24 assigned to the Federal Correctional Institution” at Lompoc and “may or
25 may not include individuals who acted individually or in concert with
26 other defendants to deny Plaintiff access to his legal counsel . . . .”
27 (Complaint at 6-7). Generally, actions against “unknown” defendants are
28 disfavored. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999).
16
1 However, a plaintiff may sue unnamed defendants when the identity of the
2 alleged defendants is not known prior to the filing of the complaint.
3 Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).
4 situation,
a
court
gives
the
plaintiff
“the
In such a
opportunity
through
5 discovery to identify the unknown defendants, unless it is clear that
6 discovery would not uncover the identities, or that the complaint would
7 be dismissed on other grounds.”
Id.
A plaintiff must diligently pursue
8 discovery to learn the identity of unnamed defendants.
9
10
Here, however, the claims against the Doe Defendants must be
11 dismissed because Plaintiff has failed to show how the Doe Defendants
12 participated in the alleged constitutional violations.
There are no
13 specific factual allegations involving Doe Defendants in the Complaint.
14 While Plaintiff states that “two armed Federal officers” ordered counsel
15 to leave the prison parking lot, (Complaint at 16, 24), and that
16 “Institution staff” leaked sensitive information about him that resulted
17 in threats of physical violence against Plaintiff by other prisoners,
18 (id. at 31), the Complaint does not specifically identify any of these
19 employees individually as “Doe No. 1, Doe No. 2,” etc. and it is unclear
20 whether these employees are even among the Doe Defendants whom Plaintiff
21 anticipates suing.
Accordingly, the Complaint must be dismissed.
22
23 J.
Plaintiff’s Complaint Violates Federal Rule Of Civil Procedure 8
24
25
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint
26 contain only “‘a short and plain statement of the claim showing that the
27 pleader is entitled to relief,’ in order to ‘give the defendant fair
28 notice of what the . . . claim is and the grounds upon which it rests.’”
17
1 Twombly, 550 U.S. at 555.
Rule 8(e)(1) instructs that “[e]ach averment
2 of a pleading shall be simple, concise, and direct.”
A complaint
3 violates Rule 8 if a defendant would have difficulty understanding and
4 responding to the complaint.
Cafasso, U.S. ex rel. v. General Dynamics
5 C4 Systems, Inc., 637 F.3d 1047, 1059 (9th Cir. 2011).
6
7
Plaintiff’s lengthy, repetitive and sometimes rambling Complaint
8 does not comply with Rule 8.
9 and irrelevant allegations.
The Complaint contains many unnecessary
For example, the Complaint includes, among
10 other things:
11
12
•
numerous citations to and discussions of unnecessary case
13
law,
(Complaint
at
24,
26-27,
32-34),
including
14
discussions of legal standards (id. at 8 (discussing
15
liberal construction to be given to pro se pleadings));
16
17
•
apparently irrelevant facts unrelated to the core claims
18
at issue, (see, e.g., id. at 18-19 (discussing petition
19
for rehearing); id. at 29 & 40 (discussing need to file
20
habeas petition));
21
22
•
23
extended restatements of the facts (compare id. at 12-19
with id. at 22-26);
24
25
•
26
extended restatements of Plaintiff’s claims (compare id.
at 9-11 with id. at 20-37); and
27
28
•
unnecessary “reservations of rights.”
18
(Id. at 11).
1 A Complaint is not a legal motion or brief.
Plaintiff is required to
2 give only a short and plain statement of his claims and the essential
3 operative facts supporting them.
He is not required to provide proof of
4 his claims at this stage of the litigation or to discuss legal standards
5 of review.
6 amend.
Accordingly, the Complaint must be dismissed with leave to
Furthermore, the Court warns Plaintiff that if he violates the
7 recommendations in this Order, and again submits a complaint that
8 includes irrelevant and unnecessary material, any such complaint is
9 likely to be dismissed, and may be dismissed without leave to amend.
10
11
IV.
12
CONCLUSION
13
14
For the reasons stated above, the Complaint is dismissed with leave
15 to amend.
If Plaintiff still wishes to pursue this action, he is
16 granted thirty (30) days from the date of this Memorandum and Order
17 within which to file a First Amended Complaint.
In any amended
18 complaint, Plaintiff shall cure the defects described above.
The First
19 Amended Complaint, if any, shall be complete in itself and shall bear
20 both the designation “First Amended Complaint” and the case number
21 assigned to this action.
It shall not refer in any manner to the prior
22 Complaint.
23
24
25 to
In any amended complaint, Plaintiff should confine his allegations
those
operative
26 irrelevant details.
facts
supporting
each
of
his
claims
and
omit
Plaintiff is advised that pursuant to Federal Rule
27 of Civil Procedure 8(a), all that is required is a “short and plain
28 statement of the claim showing that the pleader is entitled to relief.”
19
1 Plaintiff is strongly encouraged to keep his allegations only to the
2 facts that are relevant and material to his claims.
In any amended
3 complaint, the Plaintiff should make clear the nature and grounds for
4 each claim and specifically identify the defendants, including Doe
5 Defendants by number, who he maintains are liable for that claim.
It is
6 not necessary for Plaintiff to cite case law or include legal argument.
7 Plaintiff is also advised to omit any claims for which he lacks a
8 sufficient factual basis.
Furthermore, the First Amended Complaint may
9 not include new Defendants or claims not reasonably related to the
10 allegations in the Complaint.
Plaintiff is strongly advised to avoid
11 repeating any of the deficiencies of his prior complaint.
12
13
Plaintiff is explicitly cautioned that failure to timely file a
14 First
Amended
Complaint,
or
failure
to
correct
the
deficiencies
15 described above, will result in a recommendation that this action be
16 dismissed with prejudice for failure to prosecute and obey Court orders
17 pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff is further
18 advised that if he no longer wishes to pursue this action, he may
19 voluntarily dismiss it by filing a Notice of Dismissal in accordance
20 with Federal Rule of Civil Procedure 41(a)(1).
A form Notice of
21 Dismissal is attached for Plaintiff’s convenience.
22
23 DATED:
June 11, 2013
/S/
_____________________________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE
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1 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED TO BE
2 INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS.
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