Anderson v. Kimbrell, et al.

Filing 31

FINDINGS and RECOMMENDATION Regarding Dismissal of Second Amended Complaint 27 , signed by Magistrate Judge Dennis L. Beck on 4/22/15. Referred to Judge Ishii; 21-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DION ANDERSON,

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Plaintiff,

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v.
M. KIMBRELL, et al.,

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Defendants.

Case No. 1:13-cv-00378-AWI-DLB PC
FINDINGS AND RECOMMENDATION
REGARDING DISMISSAL OF SECOND
AMENDED COMPLAINT
(ECF No. 27)
21-DAY DEADLINE

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I.

Background

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Plaintiff Dion Anderson (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On March 15, 2013, Plaintiff filed

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the Complaint. On October 18, 2013, the Court screened and dismissed the complaint with leave to

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amend for failure to state a cognizable claim for relief. On November 12, 2013, Plaintiff filed a

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motion for reconsideration. The motion for reconsideration was denied on January 3, 2014. Plaintiff

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appealed to the Ninth Circuit Court of Appeals, and the appeal was denied on March 24, 2014. On

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February 6, 2014, Plaintiff filed a First Amended Complaint. Plaintiff filed a motion for leave to file

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a Second Amended Complaint on March 24, 2014, along with a lodged Second Amended

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Complaint. On August 26, 2014, the Court granted Plaintiff’s motion and ordered the Second

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Amended Complaint to be filed. The Second Amended Complaint is presently before the Court for

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screening.
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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.

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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.” Id. § 1915(e)(2)(B)(ii).

Id. § 1915A(b)(1),(2).

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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, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). While factual

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allegations are accepted as true, legal conclusions are not. Id.

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II.

Summary of Complaint

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Plaintiff was incarcerated at Corcoran State Prison (“CSP”) in Corcoran, California, where

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the events giving rise to this action occurred. Plaintiff names as Defendants: M. Kimbrell (litigation

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coordinator), A. Gultierez (mailroom supervisor), and T. Jones (trust account supervisor).

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Plaintiff alleges the following. On April 4, 2012, Plaintiff was issued a Rules Violation

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Report (“RVR”) for assaulting a correctional officer. On April 24, 2012, Plaintiff was found guilty

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by the Senior Hearing Officer and his case was referred to the Kings County District Attorney’s

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Office for criminal prosecution.

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On July 7, 2012, Plaintiff initiated a grievance that was classified as a general appeal.

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Plaintiff also initiated a civil action in the Kings County Superior Court. Plaintiff was notified that

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he was required to file a state tort claim within a given amount of time. On September 20, 2012,

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Plaintiff sent via mail his original government claim with two copies attached to CSP’s Trust

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Department, requesting that they process the Fee Waiver Application that was enclosed. Plaintiff
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also sent via mail additional copies to the Kings County Superior Court and the Deputy Attorney

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General for verification of Plaintiff’s timely filing. However, on September 27, 2012, Plaintiff’s

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original documents with attached copies were returned by CSP’s Litigation Coordinator, Defendant

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Kimbrell, specifying that Plaintiff needed to attach an unspecified fee waiver form that did not

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accompany the general claim form.

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On September 27, 2012, Plaintiff rerouted the documents back to the Trust Office, and he

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had Officer Hayward verify on a CDCR-22 form that Plaintiff had hand-delivered his legal mail to

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him on this date. Plaintiff also sent via mail a partial copy of his original documents to the State

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Board in order to effect timely submission and to receive a case number. He also notified the State

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Board that his fee waiver and originals would arrive shortly.

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On October 15, 2012, Plaintiff was notified by the State Board that his submission had been

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received and his case number assigned; however, the State Board had not received a Fee Waiver.

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Subsequently, Plaintiff filed a 602 to the CSP Appeals Coordinator. The appeal was returned

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advising Plaintiff that it was his fault that no Fee Waiver was received by the State Board and that

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Plaintiff had shown no evidence that the mailroom, Trust Office, or Litigation Coordinator were

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responsible for intentional loss or destruction of his documents.

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On November 29, 2012, Plaintiff was charged in the Kings County Superior Court for

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assault, but the case was later dismissed.

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Plaintiff requests monetary relief.

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III.

Analysis

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A.

Access to Courts

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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, 116 S.Ct. 2174 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011);

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Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009). Prison officials may not actively interfere with

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an inmate’s right to litigate. Silva, 658 F.3d at 1101-02. However, to state a viable claim for relief,

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Plaintiff must show that he suffered an actual injury, which requires “actual prejudice to

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contemplated or existing litigation.” Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir.

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2011) (citing Lewis, 518 U.S. at 348) (internal quotation marks omitted), cert. denied, 132 S.Ct.
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1823 (2012); Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179 (2002); Lewis, 518 U.S. at

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351; Phillips, 588 F.3d at 655.

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Here, Plaintiff’s conclusory allegations are insufficient to support a claim that Defendants M.

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Kimbrell, A. Gultierez, and T. Jones were the proximate cause of an actual injury.

Plaintiff

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speculates that his documents were intentionally destroyed or lost. In addition, he admits he does

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not know who was responsible or how any Defendant personally participated in the deprivation of

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his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Furthermore, it is unclear what, if

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any, injury Plaintiff suffered or how Defendants were responsible for any injury insofar as Plaintiff

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admits that his criminal case was ultimately dismissed. Therefore, Plaintiff fails to state a claim for

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relief. Plaintiff has already been notified of these deficiencies, and he has already been granted

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opportunities to cure them. Accordingly, the Court will recommend that the Second Amended

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Complaint be dismissed without leave to amend.

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B.

Supervisor Liability

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Supervisory personnel may not be held liable under section 1983 for the actions of

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subordinate employees based on respondeat superior, or vicarious liability. Crowley v. Bannister,

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734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d

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1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en

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banc). “A supervisor may be liable only if (1) he or she is personally involved in the constitutional

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deprivation, or (2) there is a sufficient causal connection between the supervisor’s wrongful conduct

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and the constitutional violation.” Crowley, 734 F.3d at 977 (citing Snow, 681 F.3d at 989) (internal

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quotation marks omitted); accord Lemire, 726 F.3d at 1074-75; Lacey, 693 F.3d at 915-16. “Under

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the latter theory, supervisory liability exists even without overt personal participation in the

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offensive act if supervisory officials implement a policy so deficient that the policy itself is a

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repudiation of constitutional rights and is the moving force of a constitutional violation.” Crowley,

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734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation

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marks omitted).

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Here, Plaintiff fails to show how any Defendant was personally involved in the alleged

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constitutional deprivation. In addition, Plaintiff fails to demonstrate any causal connection between
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a supervisor’s wrongful conduct and the constitutional deprivation. Therefore, Plaintiff fails to state

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a claim under the theory of supervisor liability.

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IV.

Conclusion and Recommendation

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Plaintiff’s Second Amended Complaint fails to state any cognizable federal claims against

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any Defendants and should be dismissed. Plaintiff was previously provided with leave to amend and

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based on the nature of the deficiencies, further leave to amend is not warranted. Akhtar v. Mesa, 698

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F.3d 1202, 1212-13 (9th Cir. 2012); Lopez, 203 F.3d at 1130.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty one (21)

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days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153, 1157 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

/s/ Dennis

April 22, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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