Antoine P LeBlanc v. John Soto et al

Filing 40

ORDER DISMISSING SECOND AMENDED COMPLAINT 25 WITH LEAVE TO AMEND by Magistrate Judge Alexander F. MacKinnon. A Third Amended Complaint may be filed no later than 11/18/16. (See document for details). (Attachments: # 1 CV-66 CV Rights Complaint Form, # 2 Form CV-09 Notc of Dismissal) (ib)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

ANTOINE P. LeBLANC,

12

Plaintiff,
v.

13
14

JOHN SOTO, et al.,

15

Case No. CV 15-05174-JLS (AFM)
ORDER DISMISSING SECOND
AMENDED COMPLAINT WITH
LEAVE TO AMEND

Defendants.

16
17
18

I.

SUMMARY OF PROCEEDINGS

19

On July 9, 2015, plaintiff, a state prisoner presently incarcerated at the

20

California Health Care Facility in Stockton, California, filed a pro se civil rights

21

action pursuant to 42 U.S.C. § 1983. He subsequently was granted leave to proceed

22

without prepayment of the full filing fee. Plaintiff’s claims arise from incidents that

23

took place while he was incarcerated at the California State Prison – Los Angeles

24

County in Lancaster, California (“CSP-LAC”). (ECF No. 1 at 2.)1 The Complaint

25

named as defendant Warden John Soto, in his individual and official capacities.

26

(Id. at 3.) On October 23, 2015, plaintiff filed a motion for leave to amend the

27
28

1

The Court references the electronic version of the pleadings.

1

Complaint, which the Court granted. (ECF Nos. 17-18.)2 On October 27, 2015,

2

plaintiff filed a First Amended Complaint (“FAC”), which consists of more than

3

300 pages including exhibits. (ECF No. 19.) The FAC named Warden Soto and

4

various other prison officials at CSP-LAC as defendants. All defendants were

5

named in their official as well as individual capacities. (Id. at 3-7, 24-28, 32-37;

6

ECF No. 19-1 at 16.)

7

In accordance with the terms of the “Prison Litigation Reform Act of 1995”

8

(“PLRA”), the Court screened the FAC prior to ordering service for purposes of

9

determining whether the action is frivolous or malicious; or fails to state a claim on

10

which relief may be granted; or seeks monetary relief against a defendant who is

11

immune from such relief. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); 42 U.S.C.

12

§ 1997e(c)(1). After careful review and consideration of the FAC, the Court found

13

that plaintiff’s allegations appeared insufficient to state any claim on which relief

14

may be granted. Plaintiff was apprised that his allegations failed to comply with

15

Federal Rules of Civil Procedure 8(a) and 8(d); the Eleventh Amendment bars

16

plaintiff’s federal civil rights claims for monetary damages against an individual

17

defendant in his or her official capacity; to the extent plaintiff was purporting to

18

raise any claims for denial of access to the courts, he must show that he suffered an

19

“actual injury” as a result of the defendants’ actions; plaintiff may not raise a

20

federal civil rights claim arising from a failure by prison officials to adequately

21

process grievances because prisoners have no constitutional right to an effective

22

grievance or appeal procedure; and to the extent plaintiff was seeking injunctive

23

relief, his transfer from CSP-LAC rendered any such request moot. (See ECF No.

24

20.)

25

Accordingly, the FAC was dismissed with leave to amend. See Rosati v.

26

Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss

27
28

By Order of the Chief Magistrate Judge, this case was transferred to the calendar
of the below Magistrate Judge on July 20, 2015.
2

2

1

a pro se complaint without leave to amend unless it is absolutely clear that the

2

deficiencies of the complaint could not be cured by amendment.”) (internal

3

quotation marks omitted). Plaintiff was ordered, if he still desired to pursue this

4

action, to file a Second Amended Complaint no later than April 27, 2016,

5

remedying the pleading deficiencies discussed in the Court’s Order Dismissing.

6

Further, plaintiff was admonished that, if he failed to timely file a Second Amended

7

Complaint, or failed to remedy the deficiencies of his pleading, the Court would

8

recommend that the action be dismissed with prejudice. (See ECF No. 20.)

9

Following an extension of time, plaintiff filed a Second Amended Complaint

10

(“SAC,” ECF No. 25) on May 3, 2016. The SAC names ten defendants from CSP-

11

LAC, including Warden Soto; Associate Wardens Ulstad and Jordan; Chief Deputy

12

Wardens Biaggini and Cano; Voong, the Chief of Inmate Appeals; and Appeals

13

Coordinator Fordham. Once again, all defendants are named in their official as

14

well as individual capacities. (ECF No. 25 at 4-8.) Plaintiff raises four claims

15

arising from the repeated refusal of prison officials to provide him with paper and

16

pen fillers and an alleged “misappropriation of funds” (id. at 24). The SAC seeks

17

compensatory and punitive damages (id. at 26-27, 30-31), declaratory relief, and

18

injunctive relief to “require defendants to supply the entire indigent population with

19

pen fillers and paper at their expense” (id. at 28-29), and an “audit of the financial

20

state and budget of CSP-LAC” regarding the “misappropriation of funds i.e. pen

21

fillers and paper” (id. at 32).

22

On July 19, 2016, plaintiff filed a Motion for a Temporary Restraining Order

23

and Preliminary Injunction. (ECF No. 27 “Motion”.) Plaintiff’s Motion included

24

an attached Exhibit A, a Rules Violation Report (“RVR”) concerning an incident

25

that occurred on June 28, 2016, at CSP-LAC. In his Motion, plaintiff sought

26

“protection” from the Court to “prevent any more retaliatory actions” and alleged

27

that he was in imminent danger of harm. (ECF No. 27 at 1, 7.) Plaintiff stated that

28

he and his cellmate had been attacked and beaten by two Correctional Officers at
3

1

CSP-LAC. Following the incident, plaintiff was taken to the hospital and then

2

transferred to a different facility. (Id. at 3.) The RVR that plaintiff attached to his

3

TRO motion indicates that felony prosecution of plaintiff is likely for attempted

4

murder following the incident on June 28, 2016. (Id. at 8-9.) Plaintiff’s request for

5

a temporary restraining order was denied by the District Judge on July 20, 2016,

6

because plaintiff had failed to show any likelihood that the harm would be repeated

7

following his transfer. (ECF No. 28.)

8

On August 18, 2016, plaintiff notified the Court that he had been transferred

9

to the California Health Care Facility in Stockton, California. (ECF No. 29.) Also

10

on August 18, 2016, plaintiff filed a Motion seeking copies of complaints and

11

motions pending in his federal cases because, at the time that he was transferred

12

from CSP-LAC on June 28, 2016, his property did not accompany him. As of

13

August 11, 2016, his legal documents had not been returned to him. Plaintiff stated

14

in an attached declaration (signed on August 11, 2016) that “without my property

15

. . . it will hinder my progress in all cases pending before your court.” (ECF No. 30

16

at 1-3.) In response, the Court ordered the Deputy Attorney General to make an

17

effort to locate plaintiff’s legal property. (ECF No. 34.) On September 23, 2016,

18

the Deputy Attorney General notified the Court that plaintiff’s property had been

19

located and would be “transported forthwith” to his present facility. (ECF No. 35.)

20

Also on August 18, 2016, plaintiff notified the Court of his intent to appeal

21

the Court’s denial of his Motion for a Temporary Restraining Order, and, on

22

August 29, 2016, the Court was notified by the Ninth Circuit that plaintiff had filed

23

an appeal. (ECF Nos. 31, 33.)

24

On August 22, 2016, plaintiff filed another Request for Preliminary

25

Injunction herein, seeking an order requiring defendants to provide pen fillers and

26

paper to indigent inmates at CSP-LAC, the same relief that he seeks, in part, in his

27

SAC. (ECF No. 32.)

28
4

1

Having now been notified that plaintiff has regained, or soon will regain,

2

possession of his legal documents, the Court, in accordance with the mandate of the

3

PLRA, has screened the SAC prior to ordering service. The Court’s screening of

4

the pleading under the foregoing statutes is governed by the following standards. A

5

complaint may be dismissed as a matter of law for failure to state a claim for two

6

reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a

7

cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

8

(9th Cir. 1990); see also Rosati, 791 F.3d at 1039 (when determining whether a

9

complaint should be dismissed for failure to state a claim under 28 U.S.C.

10

§ 1915(e)(2), the court applies the same standard as applied in a motion to dismiss

11

pursuant to Rule 12(b)(6)). In determining whether the pleading states a claim on

12

which relief may be granted, its allegations of material fact must be taken as true

13

and construed in the light most favorable to plaintiff. See Love v. United States,

14

915 F.2d 1242, 1245 (9th Cir. 1989). However, the “tenet that a court must accept

15

as true all of the allegations contained in a complaint is inapplicable to legal

16

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

17

In addition, since plaintiff is appearing pro se, the Court must construe the

18

allegations of the pleading liberally and must afford plaintiff the benefit of any

19

doubt. See Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir.

20

1988). However, the Supreme Court has held that, “a plaintiff’s obligation to

21

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

22

conclusions, and a formulaic recitation of the elements of a cause of action will not

23

do. . . . Factual allegations must be enough to raise a right to relief above the

24

speculative level . . . on the assumption that all the allegations in the complaint are

25

true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

26

(2007) (internal citations omitted, alteration in original); see also Iqbal, 556 U.S. at

27

678 (To avoid dismissal for failure to state a claim, “a complaint must contain

28

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
5

1

on its face.’ . . . A claim has facial plausibility when the plaintiff pleads factual

2

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

3

liable for the misconduct alleged.” (internal citation omitted)); Starr v. Baca, 652

4

F.3d 1202, 1216 (9th Cir. 2011) (“the factual allegations that are taken as true must

5

plausibly suggest an entitlement to relief, such that it is not unfair to require the

6

opposing party to be subjected to the expense of discovery and continued

7

litigation”), cert. denied, 132 S. Ct. 2101 (2012).

8

After careful review and consideration of the SAC under the foregoing

9

standards, the Court finds that plaintiff’s allegations remain insufficient to state any

10

claim on which relief may be granted. Because plaintiff is appearing pro se, the

11

Court must afford plaintiff the benefit of any doubt. See Karim-Panahi, 839 F.2d at

12

623. Therefore, the Court will provide him with one final opportunity to amend his

13

pleading to correct the deficiencies set forth below. Accordingly, the FAC is

14

dismissed with leave to amend. See Rosati, 791 F.3d at 1039 (“A district court

15

should not dismiss a pro se complaint without leave to amend unless it is absolutely

16

clear that the deficiencies of the complaint could not be cured by amendment.”)

17

(internal quotation marks omitted).

18

If plaintiff still desires to pursue this action, he is ORDERED to file a

19

Third Amended Complaint no later than November 18, 2016, remedying the

20

deficiencies discussed below. Further, plaintiff is admonished that, if he fails to

21

timely file a Third Amended Complaint, or fails to remedy the deficiencies of this

22

pleading as discussed herein, the Court will recommend that this action be

23

dismissed without leave to amend and with prejudice.3

24

Plaintiff is advised that this Court’s determination herein that the allegations in
the Second Amended Complaint are insufficient to state a particular claim should
not be seen as dispositive of that claim. Accordingly, although this Court believes
that you have failed to plead sufficient factual matter in your pleading, accepted as
true, to state a claim to relief that is plausible on its face, you are not required to
omit any claim or defendant in order to pursue this action. However, if you decide
3

25
26
27
28

6

1

II.

PLAINTIFF’S FACTUAL ALLEGATIONS

2

Prior to plaintiff’s “arrival” at CSP-LAC, plaintiff had a “civil suit” against a

3

“Duane Folke” pending in Los Angeles County Superior Court. (ECF No. 25 at 9.)

4

After arriving at CSP-LAC, plaintiff “soon realized that staff do not give pen fillers

5

or paper nor [sic] any other writing utensil.” (Id.) Plaintiff “corresponded with the

6

courts [sic] intermittently by borrowing pens from inmates against the rules of

7

CDC.” (Id.) Plaintiff corresponded with the Superior Court in September and

8

October 2012, and he received mail from the Superior Court from September 2012

9

through February 2013. (Id. at 9-10.) Plaintiff states the conclusory allegation that

10

his Superior Court case was “dismissed” because CSP-LAC denied “access to pen

11

fillers or pencils.” (Id. at 10.)

12

Plaintiff requested pen fillers and paper on November 11, 2014 “from the

13

Inmate Trust Office,” which sent him to the mailroom. The mailroom sent him to

14

the floor staff at his facility, and the floor staff refused his request. (Id. at 10-11.)

15

Plaintiff alleges that, “[b]etween December 17, 2014, current, numerous

16

appeals were either rejected or cancelled” by defendant Fordham. (Id. at 11.)

17

Plaintiff explained to defendant Fordham that plaintiff did not have any pens, and

18

that CSP-LAC does not distribute pens. (Id.) Plaintiff also alleges that Sergeant

19

Gonzales accommodated plaintiff “one time.” (Id. at 12.) In addition, plaintiff

20

alleges that his “access to the grievance procedure was denied” by Fordham on nine

21

dates from December 19, 2014, through September 2, 2015. (Id. at 11.) Further,

22

plaintiff alleges that some of his administrative grievances were rejected because he

23

wrote them in pencil. (Id. at 11, 15.)

24
25
26
27
28

to pursue a claim in a Third Amended Complaint that this Court has found to be
insufficient, then this Court, pursuant to the provisions of 28 U.S.C. § 636,
ultimately will submit to the assigned district judge a recommendation that such
claim be dismissed with prejudice for failure to state a claim, subject to your right
at that time to file Objections with the district judge as provided in the Local Rules
Governing Duties of Magistrate Judges.
7

1

Plaintiff also alleged that defendants’ “intentional denial of writing materials

2

was causing a deterioration in my mental health.” (Id. at 16-17.) “Between July

3

2014 and August 2015,” plaintiff had mental health issues “due to situational,

4

emotional and institutional stressors,” and he attempted suicide on December 30,

5

2014. (Id. at 22.) In addition, plaintiff alleges that he suffered from depression,

6

and he let unspecified officials know (at unspecified times) that “they were

7

hampering, denying my ability to contact my family, one who was terminally ill.”

8

(Id. at 21.)

9
10

III.

DISCUSSION

11

A.

12

Plaintiff’s SAC still fails to comply with Federal Rules of Civil Procedure

13
14
15
16
17
18

Federal Rule of Civil Procedure 8

8(a) and 8(d). Fed. R. Civ. P. 8(a) states:
A pleading that states a claim for relief must contain: (1) a short
and plain statement of the grounds for the court’s jurisdiction
. . .; (2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and (3) a demand for the relief
sought, which may include relief in the alternative or different
types of relief.

19

(Emphasis added).

Further, Rule 8(d)(1) provides:

20

simple, concise, and direct. No technical form is required.” Although the Court

21

must construe a pro se plaintiff’s pleadings liberally, a plaintiff nonetheless must

22

allege a minimum factual and legal basis for each claim that is sufficient to give

23

each defendant fair notice of what plaintiff’s claims are and the grounds upon

24

which they rest. See, e.g., Brazil v. United States Dep’t of the Navy, 66 F.3d 193,

25

199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (a

26

complaint must give defendants fair notice of the claims against them).

27

plaintiff fails to clearly and concisely set forth factual allegations sufficient to

28

provide defendants with notice of which defendant is being sued on which theory
8

“Each allegation must be

If a

1

and what relief is being sought against them, the pleading fails to comply with Rule

2

8. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996); Nevijel v.

3

Northcoast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). Moreover, failure to

4

comply with Rule 8 constitutes an independent basis for dismissal of a complaint

5

that applies even if the claims in a complaint are not found to be wholly without

6

merit. See McHenry, 84 F.3d at 1179; Nevijel, 651 F.2d at 673.

7
8

B.

Declaratory and Injunctive Relief

9

As the Court has previously apprised plaintiff, his transfer from CSP-LAC

10

renders his request for declaratory and injunctive relief moot because plaintiff is no

11

longer subject to the policies and practices of CSP-LAC regarding the provision of

12

writing materials to indigent prisoners. The Ninth Circuit has recognized that the

13

transfer of an inmate from a prison generally moots any claims for injunctive relief

14

based on the prison’s policies. See Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir.

15

1995). Like plaintiff does here, the inmate in Dilley argued that his injunctive relief

16

claim ─ based on inadequate access to legal materials ─ should nevertheless

17

survive because it was capable of repetition, yet evading review. The Ninth Circuit

18

rejected this argument for two reasons. First, the Ninth Circuit held that this type of

19

claim did not challenge action by the prison that was too short in duration to be

20

fully litigated before it ends. Id. at 1368-69. Similarly, nothing about the alleged

21

policy regarding pen fillers and paper at CSP-LAC indicates that it would escape

22

review because of its short duration. Second, the Ninth Circuit found in Dilley that

23

there was no reasonable expectation that the inmate would be transferred back to

24

the original prison and subjected again to the challenged policies. Id. The same

25

holds true regarding plaintiff in the present case; plaintiff does not allege that he is

26

likely to be transferred back to CSP-LAC. See also Preiser v. Newkirk, 422 U.S.

27

395, 402-04 (1975) (inmate’s request for declaratory judgment rendered moot by

28

inmate’s transfer to another prison).
9

1

C.

The Eleventh Amendment

2

As the Court previously has apprised plaintiff, the Eleventh Amendment bars

3

his federal civil rights claims for monetary damages against the individual

4

defendants in their official capacities.

5

The Eleventh Amendment bars federal jurisdiction over suits by individuals

6

against a State and its instrumentalities, unless either the State consents to waive its

7

sovereign immunity or Congress abrogates it. Pennhurst State School & Hosp. v.

8

Halderman, 465 U.S. 89, 99-100 (1984). In addition, “the eleventh amendment

9

bars actions against state officers sued in their official capacities for past alleged

10

misconduct involving a complainant’s federally protected rights, where the nature

11

of the relief sought is retroactive, i.e., money damages.” Bair v. Krug, 853 F.2d

12

672, 675 (9th Cir. 1988). To overcome this Eleventh Amendment bar, the State’s

13

consent or Congress’ intent must be “unequivocally expressed.” Pennhurst, 465

14

U.S. at 99. While California has consented to be sued in its own courts pursuant to

15

the California Tort Claims Act, such consent does not constitute consent to suit in

16

federal court. See BV Engineering v. University of California, 858 F.2d 1394, 1396

17

(9th Cir. 1988); see also Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241

18

(1985) (holding that Art. III, § 5 of the California Constitution does not constitute a

19

waiver of California’s Eleventh Amendment immunity). Finally, Congress has not

20

repealed state sovereign immunity against suits brought under 42 U.S.C. § 1983.

21

Because the California Department of Corrections and Rehabilitation (“CDCR”) is

22

a state agency, it is immune from civil rights claims raised pursuant to § 1983. See

23

Pennhurst, 465 U.S. at 100 (“This jurisdictional bar applies regardless of the nature

24

of the relief sought.”); Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam)

25

(the Eleventh Amendment bars claim for injunctive relief against Alabama and its

26

Board of Corrections).

27

employees of the CDCR (see ECF No. 25 at 4-7), plaintiff may not seek monetary

28

damages against state employees in their official capacities. Moreover, because

Because the individual defendants are alleged to be

10

1

plaintiff’s requests for declaratory and injunctive relief are moot, plaintiff may not

2

proceed with any claims against the named defendants in their official capacities.

3
4

D.

5

In his Claim I, plaintiff alleges a “[d]enial of [his] First Amendment due

6

Access to the Courts

process rights of access to the courts.” (ECF No. 25 at 9.)

7

First, to the extent that plaintiff is alleging that defendants’ denial of his

8

requests for pen fillers and paper violated his federal constitutional right of access

9

to the courts, in order for plaintiff to state such a claim, he must show that he

10

suffered an “actual injury” that was caused by defendants’ actions. See Lewis v.

11

Casey, 518 U.S. 343, 354-55 (1996). In order to establish an “actual injury,”

12

plaintiff “must show that official acts or omissions ‘hindered his efforts to pursue a

13

[non-frivolous] legal claim.’” Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009)

14

(quoting Lewis, 518 U.S. at 351 (alteration in original)). The right of a prisoner’s

15

access to the courts is limited to “the capability of bringing contemplated

16

challenges to sentences or conditions of confinement before the courts.” Lewis, 518

17

U.S. at 356. As the Ninth Circuit has stated, the Supreme Court has “made clear”

18

that prisoners are guaranteed “no particular methodology [in accessing the courts],

19

but rather the conferral of a capability − the capability of bringing contemplated

20

challenges.” Phillips, 588 F.3d at 655. Moreover, the Ninth Circuit has held that

21

the Supreme Court’s opinion in Bounds v. Smith, 430 U.S. 817, 824-25 (1977),

22

requires only that prison officials provide resources adequate to “meet minimum

23

constitutional standards sufficient to provide meaningful, though perhaps not

24

‘ideal,’ access to the courts.” Phillips, 588 F.3d at 656.

25

It is true that the Supreme Court in Bounds, 430 U.S. at 824-25, held that, “It

26

is indisputable that indigent inmates must be provided at state expense with paper

27

and pen to draft legal documents.” However, the Supreme Court subsequently

28

made it clear that the lack of paper or pens alone is not enough to state a claim for
11

1

denial of access to the courts.

2

allegations showing that defendants’ “acts or omissions ‘hindered his efforts to

3

pursue a [non-frivolous] legal claim.’” Phillips, 588 F.3d at 655 (quoting Lewis,

4

518 U.S. at 351 (alteration in original)). Moreover, the constitutional right of

5

access to the courts for prisoners is limited to “the capability of bringing

6

contemplated challenges to sentences or conditions of confinement before the

7

courts.” Lewis, 518 U.S. at 356; see also Alvarez v. Hill, 518 F.3d 1152, 1155 n.1

8

(9th Cir. 2008) (“Failure to show that a ‘nonfrivolous legal claim has been

9

frustrated’ is fatal to his Bounds claim.”); Simmons v. Sacramento County Superior

10

Court, 318 F.3d 1156, 1159-60 (9th Cir. 2003) (explaining that “a prisoner has no

11

constitutional right of access to the courts to litigate an unrelated civil claim”). As

12

the Supreme Court stated in Lewis (id. at 355, explaining their earlier decision in

13

Bounds):

14

incidental (and perfectly constitutional) consequences of conviction and

15

incarceration.”

16

Rather, a prisoner must also set forth factual

“Impairment of any other litigating capacity is simply one of the

In his SAC, plaintiff alleges that one Los Angeles County Superior Court

17

case was dismissed.

However, plaintiff alleges that his last contact with the

18

Superior Court in that case was in February 2013, but plaintiff did not request pen

19

fillers and paper from any defendant prior to November 2014, long after the

20

Superior Court case had concluded. (ECF No. 9-10.) Accordingly, plaintiff’s

21

factual allegations are entirely insufficient to raise a reasonable inference that the

22

denial of pen fillers or paper by any defendant caused plaintiff’s Superior Court

23

case to be dismissed. Nor does plaintiff allege that the Superior Court case, which

24

was a civil suit against an individual (id. at 9), concerned plaintiff’s conditions of

25

confinement.

26

Accordingly, plaintiff’s factual allegations, even construed liberally, fail to

27

allege either that plaintiff suffered an “actual injury” to any case challenging

28

plaintiff’s sentence or conditions of his confinement, or that the actions of any
12

1

defendant hindered his efforts to raise any such claim. See, e.g., Rose v. Montana,

2

422 Fed. App’x 631, 631-32 (9th Cir. 2011) (finding the district court properly

3

dismissed plaintiff’s “access-to-courts claims because either they pertained to state

4

law tort causes of action, or Rose failed to allege facts showing how defendants’

5

acts hindered his efforts to pursue challenges to his criminal conviction or prison

6

conditions” citing Lewis) (now citable for its persuasive value per Ninth Circuit

7

Rule 36-3); Terry v. Cal. Dep’t of Corr. & Rehab., 2013 WL 1561432, at *4, 2013

8

U.S. Dist. LEXIS 53288, at *15 (C.D. Cal. Mar. 7, 2013) (“the right of state

9

prisoners to access the courts is not absolute; rather, it is limited to allowing

10

prisoners the capability of bringing contemplated challenges to sentences or

11

conditions of confinement before the courts” and “[a] prisoner has no right to court

12

access for any other type of action,” citing Lewis, 518 U.S. at 355) (internal

13

quotation marks omitted)).

14

Second, to the extent that plaintiff may be purporting to raise a federal civil

15

rights claim arising from his allegations that defendants denied him “access to the

16

grievance procedure” (id. at 11) or from his allegations that defendants failed to

17

adequately answer or investigate the numerous administrative grievances that he

18

filed, a prisoner has no constitutional right to an effective grievance or appeal

19

procedure. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that

20

a prisoner has no constitutional right to an effective grievance or appeal procedure);

21

Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). In addition, the guarantee of

22

procedural due process under the Fourteenth Amendment applies only when a

23

constitutionally protected liberty or property interest is at stake. See Ingraham v.

24

Wright, 430 U.S. 651, 672 (1977); Board of Regents v. Roth, 408 U.S. 564, 569

25

(1972).

26

protected by the Due Process Clause. See, e.g., Antonelli v. Sheahan, 81 F.3d 1422,

27

1430 (7th Cir. 1996). In his SAC, plaintiff once again fails to set forth factual

28

allegations that raise a reasonable inference that any defendant responsible for

An administrative appeal system does not implicate a liberty interest

13

1

handling plaintiff’s grievances “actually knew” that his or her failure to adequately

2

resolve the grievances placed plaintiff at a serious risk. See, e.g., Peralta v. Dillard,

3

744 F.3d 1076, 1087 (9th Cir. 2014) (en banc) (defendant’s “failure to follow

4

required procedure for inmate appeals “isn’t, of itself, enough to establish a

5

violation of [prisoner’s] constitutional rights,” the prisoner mush show both that the

6

failure “put inmates at risk” and that the defendant “actually knew that his actions

7

put inmates at risk” (emphasis in original)), cert. denied, 135 S. Ct. 946 (2015).

8

Although plaintiff sets forth conclusory allegations that he let the appeals

9

coordinators know that they were hampering plaintiff’s ability to contact his family

10

and that they were aware that he was “mentally ill” and “suffering from

11

depression,” (id. at 21), plaintiff also alleges that he attempted suicide slightly more

12

than one month after his first request for pen fillers and paper on November 11,

13

2014 (id. at 10, 22 (see also attachment at 36 stating that plaintiff requested

14

supplies from November 11, 2014, to May 6, 2015)). Accordingly, plaintiff’s

15

factual allegations fail to raise a reasonable inference that the alleged actions of any

16

defendant caused plaintiff’s mental illness to worsen or that any prison official was

17

aware that the denial of plaintiff’s request for pen fillers and paper would place

18

plaintiff at a serious risk of harm. See Iqbal, 556 U.S. at 678 (“A claim has facial

19

plausibility when the plaintiff pleads factual content that allows the court to draw

20

the reasonable inference that the defendant is liable for the misconduct alleged.”).

21
22

E.

First Amendment Right to Freedom of Speech

23

Plaintiff’s SAC purports to raise his Claim II for “denial of my First

24

Amendment right to freedom of speech.” (ECF No. 25 at 18.) He incorporates the

25

“supporting facts” and defendants mentioned in Claim 1. (Id.) In this claim,

26

plaintiff alleges that each defendant “violated my right to freedom of speech by not

27

supplying a writing instrument or paper” to an indigent inmate. (Id.)

28
14

1

Although inmates have a First Amendment right to send and receive mail,

2

prison officials “may adopt regulations which impinge on an inmate’s constitutional

3

rights if those regulations are ‘reasonably related to legitimate penological

4

interests.’” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (quoting Turner v.

5

Safley, 482 U.S. 78, 89 (1987)). Here, plaintiff does not allege that defendants

6

censored his outgoing mail, but rather, that the alleged failure to provide indigent

7

prisoners with pen fillers and paper interfered with plaintiff’s First Amendment

8

right to send non-legal mail. Prisoners, however, do not have a constitutional right

9

to unlimited free access to the mail. Prison administrators may balance the cost of

10

providing supplies against plaintiff’s First Amendment right to send non-legal mail.

11

See, e.g., Walker v. Davis, 533 Fed. App’x 471 (5th Cir.), cert. denied, 134 S. Ct.

12

643 (2013); Gaines v. Lane, 790 F.2d 1299, 1308 (7th Cir. 1986) (“However,

13

although prisoners have a right of access to the courts, they do not have a right to

14

unlimited free postage.”) (citing Bach v. Coughlin, 508 F.2d 303, 307-08 (7th Cir.

15

1974)). Further, the Court does not accept as true plaintiff’s conclusory allegation

16

that defendants were “hampering, denying my ability to contact my family,” or that

17

defendants’ actions denied plaintiff the ability to write letters. See Iqbal, 556 U.S.

18

at 678; Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (a court

19

is not required “to accept as true allegations that are merely conclusory,

20

unwarranted deductions of fact, or unreasonable inferences.”). Plaintiff does not set

21

forth any factual allegations allowing the Court to draw a reasonable inference that

22

the actions of defendants in not providing pen fillers and paper denied plaintiff the

23

ability to contact his family at any point in time. To the contrary, plaintiff’s factual

24

allegations indicate that he was able to write grievances in pencil or a “borrowed

25

pencil” (ECF No. 25 at 11, 15), that he begged and borrowed paper, pen fillers, and

26

pencils, which was stressful, but did not prevent him from communicating (id. at

27

23), and that his request for pen fillers and paper was “accommodated” at least one

28

time (id. at 12). Moreover, the record of plaintiff’s own litigation history in this
15

1

Court shows that plaintiff had sufficient access to paper and writing utensils to

2

submit more than 190 handwritten pages in six of his separate lawsuits between

3

July 2015 and the beginning of June 2016.

4

Accordingly, plaintiff’s SAC fails to set forth sufficient factual allegations to

5

“nudge” a First Amendment claim “across the line from conceivable to plausible.”

6

Twombly, 550 U.S. at 555.

7
8

F.

Eighth Amendment

9

In his Claim III, plaintiff alleges a “denial of my Eighth Amendment right to

10

be free from cruel and unusual punishment.” (ECF No. 25 at 20.) Once again he

11

incorporates the defendants and supporting facts of Claim I. (Id.) Plaintiff alleges

12

that defendants’ decision not to act “constitutes deliberate indifference as it allowed

13

the violations to continue in a manner inconsistent with established law.” (Id.)

14

Plaintiff alleges that defendants were aware of a “risk of harm,” but the only

15

“harm” he alleges is that he was suffering from depression and that he let them

16

know that “they were hampering, denying my ability to contact my family, one who

17

was terminally ill.” (Id. at 21.)

18

“A prison official’s ‘deliberate indifference’ to a substantial risk of serious

19

harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S.

20

825, 828 (1994). A prison official is “deliberately indifferent” if that official is

21

“subjectively aware of the risk and does nothing to prevent the resulting harm.”

22

Jeffers v. Gomez, 267 F.3d 895, 913 (9th Cir. 2001) (citing Farmer, 511 U.S. at

23

828-29). To be subjectively aware of a risk, the prison “official must both be aware

24

of facts from which the inference could be drawn that a substantial risk of serious

25

harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.

26

Further, a plaintiff must allege that, objectively, “he is incarcerated under

27

conditions posing a substantial risk of serious harm.” Id. at 834. Further, a plaintiff

28

must allege that the “defendants’ failure to act was a proximate cause of the harm
16

1

that he suffered.” Castro v. County of Los Angeles, 797 F.3d 654, 665-66 (9th Cir.

2

2015).

3

Here, as discussed above, plaintiff does not set forth factual allegations

4

supporting a reasonable inference that a failure to act on the part of any defendant

5

caused plaintiff to be exposed to a substantial risk of serious harm.

6

plaintiff does not set forth any factual allegation that, objectively, defendants’

7

failure to provide him with pen fillers and papers created a substantial risk of

8

serious harm. Finally, plaintiff’s allegations are insufficient to raise a reasonable

9

inference that any defendant was actually aware of any risk of serious harm.

Further,

10

Accordingly, plaintiff’s SAC fails to set forth sufficient factual allegations to

11

“nudge” an Eighth Amendment claim “across the line from conceivable to

12

plausible.”

13
14

G.

Fifth Amendment

15

In his Claim IV, plaintiff alleges an “impermissible taking” under the Fifth

16

and Fourteenth Amendments arising from the allegation that Warden Soto

17

“misappropriated funds set for the funding of pen fillers.” (ECF No. 25 at 24.)

18

Once again, the Court does not accept as true plaintiff’s entirely conclusory

19

allegations. Plaintiff’s SAC does not set forth any factual allegations showing that

20

any funds set aside for providing pen fillers or paper to indigent inmates were

21

“misappropriated” or that the Warden took any specific action, participated in the

22

actions of another, or failed to take any action that he was legally required to do that

23

caused any alleged constitutional violation.

24

constitutional right, within the meaning of § 1983, if he does an affirmative act,

25

participates in another’s affirmative acts, or omits to perform an act which he is

26

legally required to do that causes the deprivation of which [the plaintiffs

27

complain].’” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (quoting Johnson

28

v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)) (emphasis in original). Further, the
17

“A person deprives another ‘of a

1

Supreme Court has made it clear that a plaintiff “must plead facts sufficient to show

2

that [his] claim has substantive plausibility.” Johnson v. City of Shelby, 135 S. Ct.

3

346, 347, 190 L. Ed. 2d 309 (2014) (per curiam). Plaintiff sets forth no factual

4

allegations showing that this claim has substantive plausibility.
************

5
6

The Court therefore finds that the SAC fails to comply with Rule 8 and fails

7

to state a claim upon which relief may be granted. If plaintiff still desires to

8

pursue this action, he is ORDERED to file a Third Amended Complaint no

9

later than November 18, 2016, remedying the deficiencies discussed above.

10

The Third Amended Complaint should bear the docket number assigned in this

11

case; be labeled “Third Amended Complaint”; and be complete in and of itself

12

without reference to the original complaint, the First Amended Complaint, the

13

Second Amended Complaint or any other pleading, attachment, or document.

14

The clerk is directed to send plaintiff a blank Central District civil rights

15

complaint form, which plaintiff is encouraged to utilize. Plaintiff is admonished

16

that he must sign and date the civil rights complaint form, and he must use the

17

space provided in the form to set forth all of the claims that he wishes to assert in a

18

Third Amended Complaint.

19

Plaintiff is further admonished that, if he fails to timely file a Third

20

Amended Complaint, or fails to remedy the deficiencies of this pleading as

21

discussed herein, the Court will recommend that the action be dismissed with

22

prejudice on the grounds set forth above and for failure to diligently

23

prosecute.

24

///

25

///

26

///

27

///

28

///
18

1

In addition, if plaintiff no longer wishes to pursue this action, he may request

2

a voluntary dismissal of the action pursuant to Federal Rule of Civil Procedure

3

41(a). The clerk also is directed to attach a Notice of Dismissal form for plaintiff’s

4

convenience.

5

IT IS SO ORDERED.

6
7

DATED: October 11, 2016

8
9
10

____________________________________
ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19