Durden v. CDCR et al

Filing 39

ORDER DISMISSING CASE WITH LEAVE TO AMEND, signed by Magistrate Judge Gerald B. Cohn on 12/08/2011. Second Amended Complaint (30 Day Deadline) (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LARRY FRANCIS DURDEN,

CASE NO. 1:11-cv-01019-AWI-GBC (PC)

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Plaintiff,

SCREENING ORDER DISMISSING
COMPLAINT, WITH LEAVE TO AMEND,
FOR FAILURE TO STATE A CLAIM

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v.
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CDCR, et al.,

Doc. 1

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Defendants.
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THIRTY-DAY DEADLINE
/

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Screening Order

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I. Procedural History

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On June 6, 2011, Plaintiff Larry Francis, a state prisoner proceeding pro se and in forma

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pauperis, filed a complaint pursuant to 42 U.S.C. § 1983, naming defendants from California
Correctional Institution in Tehachapi, California.1 See Pl. Compl. Doc. 1. On July 1, 2011, Plaintiff
filed an “Affidavit / Second Extension to First Complaint.” Doc. 8. On July 5, 2011, Plaintiff filed
a document entitled “Plaintiff States a Claim.” Doc. 10.2 On November 18, 2011 and November 23,
2011, Plaintiff filed documents entitled “Affidavits.” Docs. 32, 34, & 36. These various filings to
supplement Plaintiff’s complaint violate Local Rule 220. In the interest of judicial economy, the
Court will consider Plaintiff’s supplemental pleadings but solely in this first screening.
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Plaintiff is now incarcerated at R.J. Donovan Correctional Facility in San Diego, California.

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The case docket labels this document as “First Amended Complaint.”

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II. Screening Requirement

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge unwarranted

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inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual

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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

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Under § 1983, Plaintiff must demonstrate that each defendant personally participated in the

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deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the

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presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct.

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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of

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misconduct falls short of meeting this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572

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F.3d at 969.

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III. Plaintiff’s Complaint

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A. Allegations of Impeding U.S. Mail

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While much of Plaintiff’s initial complaint is illegible, Plaintiff does make allegations of

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impeding U.S. Mail and demands that Defendants take a lie detector test. Pl. Compl. at 4, Doc. 1.

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Plaintiff states that Defendant Staton lied when he said he mailed Plaintiff’s letters because he was

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walking back from the trash receptacle. Id. On July 1, 2011, Plaintiff filed an Affidavit / Second
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Extension to First Complaint, again alleging impeding U.S. Mail and demanding a lie detector test.

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Pl. Ext. Compl. at 1, Doc. 8. Plaintiff further alleges that C.O. Jordan and C.O. Medina stopped the

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passage of U.S. Mail. Id. C.O. Jordan and C.O. Medina would take Plaintiff’s U.S. Mail from the

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outer cell door and slide it under the cell door to enable them both from participating in the delivery

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of outside mail. Id. Plaintiff yelled at Defendants that Plaintiff had a deadline to meet. Id. Defendants

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would say they did not care that Plaintiff has a deadline to the U.S. Courts, and they would leave,

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laughing at Plaintiff. Id.

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Prisoners have “a First Amendment right to send and receive mail.” Witherow v. Paff, 52

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F.3d 264, 265 (9th Cir. 1995). However, the right is not absolute and may be infringed upon by

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prison officials under certain circumstances. Witherow, 52 F.3d at 265 ; Barrett v. Belleque, 544 F.3d

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1060, 1062 (9th Cir. 2008) (per curiam) (outgoing mail); Prison Legal News v. Lehman, 397 F.3d

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692, 699 (9th Cir. 2005) (incoming mail). Plaintiff has not alleged any facts supporting a claim that

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the Defendants named in this action violated his rights under the First Amendment by impermissibly

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interfering with his incoming or outgoing mail. Plaintiff simply alleges that Defendant was walking

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from the direction of the trash receptacle, and that Defendants slid his mail under his cell door.

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Accordingly, the Court finds that Plaintiff fails to state a cognizable claim for relief under § 1983

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based upon interference with his First Amendment right to send and receive mail.

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B. Allegations of Denial of Access to Courts

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On July 5, 2011, Plaintiff filed a document entitled “Plaintiff States a Claim.” Doc. 10.

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Plaintiff again alleged impeding the passage of U.S. Mail. Id. Plaintiff further alleged that due to

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Defendants actions in impeding his mail, he was unsuccessful in his court case, civil action number

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2:11-cv-01512-DAD (PC). Id. Plaintiff alleged a conspiracy to impede his U.S. Mail. Id. Plaintiff

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said that Defendant Staton ran out of the building with Plaintiff’s mail and returned thirty seconds

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later. Id. Plaintiff states that it would take fifteen minutes to mail Plaintiff’s letters. Id. Plaintiff

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alleged that his court case was dismissed because of Defendants’ interference with his U.S. Mail.

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Id.

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Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518

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U.S. 343, 346 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011). The right of
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access to the courts is merely the right to bring to court a grievance the inmate wishes to present, and

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is limited to direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at 354.

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To bring a claim, a prisoner must have suffered an actual injury by being shut out of court.

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Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis, 518 U.S. at 351; Phillips v. Hust, 588

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F.3d 652, 655 (9th Cir. 2009).

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Plaintiff contends that Defendants prevented him from prevailing in civil action number

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2:11-cv-01512-DAD (PC). Plaintiff initially filed this case in the Sacramento Division of the Eastern

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District of California, and the Court assigned it civil action number 2:11-cv-01512-DAD (PC). The

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Court then ordered an intradistrict transfer to the Fresno division and assigned civil action number

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1:11-cv-01019-AWI -GBC (PC). Therefore, the case Plaintiff alleges that Defendants interfered with

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is actually the instant action. Thus, there can be no injury and no denial of access to the courts

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because the case that Plaintiff contends was dismissed is the instant case Plaintiff is actively

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litigating. Accordingly, the Court finds that Plaintiff fails to state a cognizable claim for relief under

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§ 1983 based upon denial of access to courts.

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C. Allegations of Supervisory Liability

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In Plaintiff’s document entitled “Plaintiff States a Claim,” he alleges that “someone higher

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up” in the Warden’s office told Defendants Staton, Jordan, and Medina to stop Plaintiff’s U.S. Mail.

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Doc. 10 at 1.

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With respect to supervisory, managerial, or executive-level personnel, Plaintiff must still

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demonstrate that each named defendant personally participated in the deprivation of his rights.

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Iqbal, 129 S. Ct. at 1948-49; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir.

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2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934.

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Supervisors may only be held liable if they “participated in or directed the violations, or knew of the

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violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989);

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accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570

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(9th Cir. 2009); Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th

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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Liability may not be imposed

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on supervisory personnel under the theory of respondeat superior. Iqbal, 129 S. Ct. at 1948-49;
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Ewing, 588 F.3d at 1235.

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Defendants Warden and Asst. Warden may not be held liable based on their positions of

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authority as Plaintiff has not alleged any facts linking them to acts or omissions which suggest they

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were personally involved in acting to impede Plaintiff’s U.S. Mail. Iqbal, 129 S. Ct. at 1948-49;

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Ewing, 588 F.3d at 1235. A bare allegation by Plaintiff that “someone higher up” in the Warden’s

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office told Defendants Staton, Jordan, and Medina to stop Plaintiff’s U.S. Mail is insufficient to hold

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supervisory defendants liable. Accordingly, the Court finds that Plaintiff fails to state a cognizable

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claim for relief under § 1983 based upon supervisory liability.

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D. Eleventh Amendment Immunity

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Plaintiff is attempting to impose liability on the CDCR. As a state agency, the CDCR is

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entitled to Eleventh Amendment immunity from suit. Aholelei v. Dept. of Public Safety, 488 F.3d

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1144, 1147 (9th Cir. 2007). Therefore, the CDCR is an improper defendant in this action and is

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entitled to dismissal. Id. Accordingly, the Court finds that Plaintiff fails to state a cognizable claim

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for relief under § 1983 against the CDCR.

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E. Frivolous and Fanciful Allegations

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In addition to Plaintiff’s claims of impeding U.S. Mail and denial of access to courts, Plaintiff

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makes many unsubstantiated and unrelated allegations. In Plaintiff’s Affidavit / Second Extension

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to First Complaint, Plaintiff simply cites the Patriot Act, the R.I.C.O. Racketeering statute, criminal

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conspiracy, and guilt by association. Pl. Ext. Compl. at 1, Doc. 8. Plaintiff demanded that a forensic

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toxicology hair, blood, urine, and lie detector test be given to all Defendants. Id. In Plaintiff’s

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document entitled “Plaintiff States a Claim,” Plaintiff alleged a Writ of Habeas Corpus and the U.S.

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Congressional Enactment of 1778. Doc. 10. On November 18, 2011, Plaintiff filed an “Affidavit”

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alleging proximate cause, requested a Daubert hearing, and demanded that the United States

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Marshals take a lie detector test. Doc. 32. Plaintiff also filed a document to all “Your Honors,

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Jurisprudence of the Eastern District,” regarding the U.S. Constitution and the Declaration of

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Independence, stating that his language is American, referencing the War of 1812, and making

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allegations about cryogenics. Doc. 34. On November 23, 2011, Plaintiff filed an “Affidavit” entitled

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“Peace Stillness,” alleging that cryogenics would save billions of dollars and illustrating the organs
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of a refrigerated human body. Doc. 36.

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“[A] complaint, containing as it does both factual allegations and legal conclusions, is

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frivolous where it lacks an arguable basis either in law or in fact.... [The] term ‘frivolous,’ when

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applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful

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factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Martin v. Sias, 88 F.3d

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774, 775 (9th Cir.1996) ( Bivens action); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.1995)

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(non-prisoner § 1983 action); Lopez v. Dep’t of Health Servs., 939 F.2d 881, 882 (9th Cir.1991)

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(prisoner § 1983 action). Plaintiff’s various citations to unrelated statutes, rules, historical events,

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the Federal Rules of Evidence in a criminal case, and controversial topics in prisons have no factual

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support or no bearing on a § 1983 civil action and will be dismissed as frivolous.

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IV. Conclusion and Order

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Plaintiff’s complaint fails to state any claims upon which relief may be granted. The Court

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will provide Plaintiff with the opportunity to file an amended complaint. Lopez v. Smith, 203 F.3d

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1122, 1130 (9th Cir. 2000) (en banc); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended

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complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

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each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 129

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S. Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise

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a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555.

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Finally, an amended complaint supersedes the prior complaint, Forsyth v. Humana, Inc., 114

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F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and it must be

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“complete in itself without reference to the prior or superseded pleading,” Local Rule 220.

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Therefore, “[a]ll causes of action alleged in an original complaint which are not alleged in an

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amended complaint are waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644

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F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

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//

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//
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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a complaint form;

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2.

Plaintiff’s complaint is dismissed for failure to state a claim upon which relief may

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be granted;

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3.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file a
second amended complaint;

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Plaintiff shall file one document, entitled SECOND AMENDED COMPLAINT;

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The Court will screen solely the document entitled SECOND AMENDED

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COMPLAINT; and

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6.

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If Plaintiff fails to file a second amended complaint in compliance with this order,
this action will be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:
0jh02o

December 8, 2011
UNITED STATES MAGISTRATE JUDGE

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