Friend v. Johnson et al

Filing 7

ORDER Dismissing Complaint with Leave to Amend, signed by Magistrate Judge Stanley A. Boone on 6/5/15. 30-Day Deadline. (Attachments: # 1 Amended Complaint Form)(Verduzco, M)

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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.,
Defendants.

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Case No.: 1:15-cv-00267-SAB (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
[ECF No. 1]

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). Plaintiff filed the instant

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action on February 20, 2015.

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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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wasn‟t his problem and that Plaintiff would be issued his property at the convenience of the R&D
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staff. Ultimately it took 16 days to issue Plaintiff‟s legal property, which resulted in dismissal of his

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case for failure to appear and follow court order directives. Plaintiff had to re-file, which cost an

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additional amount of time and money needed for typing supplies, copies, stamps and envelopes. P.

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Johnson is directly responsible as R&D Supervisor, four separate emails were sent directly to her,

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which she ignored. T. Smith is directly responsible as he was directly contacted by Plaintiff and his

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unit counselor and chose to ignore Plaintiff‟s rights to his legal property, which subsequently denied

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Plaintiff‟s access to the court.

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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).

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Plaintiff fails to provide sufficient factual detail for the Court to properly determine whether a

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nonfrivolous action was dismissed as a result of his failure to gain access to his legal property by

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Defendants. If Plaintiff chooses to amend the complaint, he must provide sufficient factual detail as to

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the legal action that was dismissed as a result of the actions by Defendants, such as the nature of the

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suit, the date it was dismissed and the reason for dismissal. Without sufficient factual detail,

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Defendants cannot be placed on notice as to the specific nature of Plaintiff‟s claim for which he seeks

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relief and form a response thereto. Furthermore, it is unclear whether Plaintiff has not shown actual

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injury in that he concedes he re-filed the action. Accordingly, Plaintiff fails to state a cognizable claim

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for relief.

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IV.

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CONCLUSION AND ORDER

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For the reasons stated, Plaintiff‟s complaint fails to state a claim upon which relief may be

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granted. Plaintiff is granted leave to file an amended complaint within thirty (30) days. Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by

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adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007) (no “buckshot” complaints).

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

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named defendant did that led to the deprivation of Plaintiff‟s constitutional or other federal rights.

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Iqbal, 556 U.S. 662, 678. “The inquiry into causation must be individualized and focus on the duties

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and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a

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constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as

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true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level .

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. . .” Twombly, 550 U.S. at 555 (citations omitted).

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

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

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

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causes of action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981)); accord Forsyth, 114 F.3d at 1474.

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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 civil rights complaint form;

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Plaintiff‟s complaint, filed February 20, 2015, is dismissed for failure to state a claim;

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3.

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

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4.

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If Plaintiff fails to file an 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:

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June 5, 2015
UNITED STATES MAGISTRATE JUDGE

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