Friend v. Johnson et al

Filing 12

ORDER DISMISSING Amended Complaint, With Prejudice, for Failure to State a Cognizable Claim for Relief 8 , signed by Magistrate Judge Stanley A. Boone on 7/8/15: The Clerk of Court shall terminate this action. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHNNY M. FRIEND,

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Plaintiff,

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v.
P. JOHNSON, et al.,

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Defendants.

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Case No.: 1:15-cv-00267-SAB (PC)
ORDER DISMISSING AMENDED COMPLAINT,
WITH PREJUDICE, FOR FAILURE TO STATE A
COGNIZABLE CLAIM FOR RELIEF
[ECF No. 8]

Plaintiff Johnny M. Friend is a prisoner in the custody of the Federal Bureau of Prisons

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(“BOP”). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to

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Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Pursuant to 28 U.S.C. §

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636(c), Plaintiff consented to the jurisdiction of the United States Magistrate Judge on February 12,

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2012. Local Rule 302.

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Now pending before the Court is Plaintiff‟s first amended complaint, filed June 26, 2015.
(ECF No. 8.)

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I.

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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 “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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

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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 Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff‟s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are „merely

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consistent with‟ a defendant‟s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff names P. Johnson (Receiving & Departure “R&D” Supervisor) and T. Smith (R&D
Officer), as Defendants in this action.

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Plaintiff claims that after his unit counselor and unit case manager both verified the

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authenticity and time sensitive nature of an ongoing civil case, they sent emails to the R&D

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supervisor, P. Johnson, that Plaintiff was to be issued his legal property immediately. The emails

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went unanswered and ignored, despite Plaintiff‟s repeated requests and attempts at obtaining his legal

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property. Plaintiff also spoke directly to T. Smith on three separate occasions, in which he was told he

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would be put on call to get his legal property, but never did. Plaintiff told T. Smith that he had a
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pending court appearance and court order directives that were time sensitive in which he replied that it

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was not his problem and that Plaintiff would be issued his property at the convenience of the R&D

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staff. It ultimately took 16 days to issue Plaintiff‟s legal property, which resulted in dismissal of

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Plaintiff‟s child custody case on April 24, 2014, for failure to appear and follow court order directives.

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Actual injury was incurred to re-file the action by the cost of money for stamps, copies and typing

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materials in excess of one hundred dollars. The dismissal was the direct result of the actions taken by

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P. Johnson and T. Smith.

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III.

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DISCUSSION

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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 (9th Cir. 2011); Phillips v. Hust, 588

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F.3d 652, 655 (9th Cir. 2009). The right of access is merely the right to bring to court a grievance the

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inmates wishes to present, and is limited to direct criminal appeals, habeas petitions, and civil rights

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actions. Lewis, 518 U.S. at 354. Claims from denial of access to the courts may arise from the

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frustration or hindrance of “a litigating opportunity yet to be gained” (forward-looking access claim)

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or from the loss of a meritorious suit that cannot now be tried (backward-looking claim). Christopher

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v. Harbury, 536 U.S. 403, 412-415 (2002). A prisoner alleging a violation of his right of access to the

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courts must demonstrate that he suffered “actual injury.” Lewis, 518 U.S. at 349-350. The actual

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injury requirement mandates that an inmate “demonstrate that a nonfrivolous legal claim had been

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frustrated or was being impeded.” Id. at 353. The Supreme Court rejected the notion that the state

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must enable a prisoner to “litigate effectively once in court.” Id. at 354 (quoting and disclaiming

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language contained in Bounds v. Smith, 430 U.S. 817, 825-826 (1977)); see also Cornett v. Donovan,

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51 F.3d 894, 898-900 (9th Cir. 1995) (determining that prisoners‟ right of access to the courts is

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limited to the pleading stage of a civil rights action or petition for writ of habeas corpus). However,

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prisoners have a right under the First Amendment to litigate claims challenging their sentences or the

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conditions of their confinement to conclusion without active interference by prison officials. Silva v.

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DiVittorio, 658 F.3d 1090, 1103 (9th Cir. 2011). The right under the First Amendment is meant “to

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ensure that a habeas petition or a civil rights complaint of a person in custody will reach a court for
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consideration.” Cornett v. Donovan, 51 F.3d 894, 899 (9th Cir. 1995) (as amended); see also Wolff v.

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McDonnell, 418 U.S. 539, 579 (1974) (“The right of access to the courts … is founded in the Due

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Process Clause and assures that no person will be denied the opportunity to present to the judiciary

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allegations concerning violations of fundamental constitutional rights.”) Thus, a showing of “actual

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injury” in the context of a prisoner‟s right to court access does not extend to civil actions beyond a

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challenge to his conviction (for example, in a petition for writ of habeas corpus), or a civil rights

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action challenging the conditions of his confinement pursuant to Section 1983. A prisoner has no right

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to court access for any other type of action, as the Supreme Court has found that “[i]mpairment of

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other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of

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conviction and incarceration.” Lewis, 518 U.S. at 355.
Here, Plaintiff alleges that the Defendants‟ conduct caused the dismissal of his child custody

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case. Thus, the case was not a civil rights action or an action which otherwise involved the conditions

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of Plaintiff‟s confinement to the extent it implicated a fundamental constitutional right. See Lewis,

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518 U.S. at 354-355 (explaining the actual injury requirement is limited to “civil rights actions”

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seeking to vindicate “basic constitutional rights,” and noting that “Bounds does not guarantee inmates

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the wherewithal to transform themselves into litigating engines capable of filing everything from

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shareholder derivative actions to slip-and-fall claims.”); see also Simmons v. Sacramento, 318 F.3d

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1156, 1159-1160 (9th Cir. 2003). Accordingly, because Plaintiff has not and cannot meet the actual

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injury requirement for a denial of access to the courts claim, Plaintiff‟s first amended complaint does

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not state a claim for relief. Further, it is clear to the Court that Plaintiff is incapable of curing the

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deficiencies of the first amended complaint with respect to his claim by amendment. Accordingly,

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Plaintiff‟s complaint shall be dismissed with prejudice and without leave to amend. See Lucas v.

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Dep‟t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam) (holding that a pro se litigant must

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ordinarily be given leave to amend unless it is absolutely clear that deficiencies in a complaint cannot

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be cured by further amendment).

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IV.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that Plaintiff‟s first amended complaint is

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DISMISSED, with prejudice, for failure to state a cognizable claim for relief, and the Clerk of Court

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shall terminate this action.

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IT IS SO ORDERED.

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Dated:

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July 8, 2015
UNITED STATES MAGISTRATE JUDGE

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