Lopez v. Athey et al

Filing 22

ORDER ADOPTING 16 Findings and Recommendations and DISMISSING ACTION for Failure to State a Claim, signed by District Judge Lawrence J. O'Neill on 3/4/2014. CASE CLOSED (Strike). (Marrujo, C)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10
11

EMILIANO LOPEZ,

12
13
14

Plaintiff,
vs.
R. L. ATHEY, et al.,

15

Defendants.

)
)
)
)
)
)
)
)
)
)

1:11cv02075 LJO DLB PC
ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS AND
DISMISSING ACTION FOR FAILURE TO
STATE A CLAIM
(Document 16)

16
17

Plaintiff Emiliano Lopez (“Plaintiff”), a state prisoner proceeding pro se and in forma

18

pauperis, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was

19

referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local

20
21
22

Rule 302.
On November 13, 2013, the Magistrate Judge issued Findings and Recommendations that
the action be dismissed for Plaintiff’s failure to state a claim upon which relief could be granted.

23

The Findings and Recommendations were served on Plaintiff and contained notice that any
24
25
26
27
28

objections to the Findings and Recommendations were to be filed within thirty days. After
receiving extensions of time, Plaintiff filed objections on February 24, 2014.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted
a de novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s
1

1
2
3
4

objections, the Court finds that the Findings and Recommendations are supported by the record
and by proper analysis.
Insofar as Plaintiff attempts to hold Defendants Cate and Yates liable under a theory of
supervisory liability, his argument fails. Plaintiff suggests that because Defendants Cate and

5

Yates had to submit an incident report and obtain approval for the lockdown, they were aware
6
7
8
9
10

that the lockdown had suspended major program operations. However, while they may have
been aware of the general effects of a lockdown, they were not aware of Plaintiff’s specific
situation. This precludes liability against Defendants Cate and Yates.
In challenging the Court’s finding that he failed to state an access to the courts claim,

11

Plaintiff states that he has demonstrated an actual injury because, although he was able to file his

12

petitions, they were “frustrated” as a result of Defendants’ policies. Obj. 6. In support of his

13

argument, Plaintiff cites Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010), where the Ninth Circuit

14

found actual injury when, during a lockdown, an inmate was prevented from filing an appellate

15

brief to challenge his state court conviction. There, the plaintiff was on lockdown during the

16

time period that his brief was due, and he alleged that he was not aware of the alternate “paging

17
18

system” available during lockdowns. Hebbe, 627 F.3d at 343.
Here, however, Plaintiff alleges that during the first lockdown, copies and cases were

19

brought to his cell. After this two-month lockdown, he was able to use the library and worked on
20
21
22
23
24

his habeas petitions. During the second lockdown, on two occasions, Plaintiff was placed into a
small cage and was allowed to use California Criminal Law Practice and Procedures. He was
permitted to stay in the cage for two hours each time.
Therefore, unlike the inmate in Hebbe, Plaintiff was afforded alternate access during the

25

lockdown. He was given copies, had cases brought to his cell and was permitted to use

26

California Criminal Law and Procedure twice. While he may have rather had physical access to

27

the law library, the nature of the prison setting sometimes prevents this. In fact, Plaintiff states in

28
2

1

his First Amended Complaint that the conditions in which he had to perform research

2

“discouraged” him from requesting access. FAC 9. In his objections, he states that it “hindered

3

his desire” to use the law library. Obj. 6. Although Plaintiff may not have liked the way

4

research was conducted during a lockdown, it does not mean that the situation rises to the level

5

of a constitutional violation.
6
7
8
9
10

Finally, insofar as Plaintiff attempts to allege a violation of equal protection, he cannot
raise the issue for the first time in his objections.
Accordingly, IT IS HEREBY ORDERED that:
1.

full;

11
12

2.

13
14
15

16
17
18

The Findings and Recommendations, filed November 13, 2013, are ADOPTED in

This action is dismissed for failure to state a claim upon which relief may be
granted under 42 U.S.C. § 1983; and

3.

This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. §

1915(g).
IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

March 4, 2014

UNITED STATES DISTRICT JUDGE

19
20
21
22
23
24
25
26
27
28
3