Windham v. Rubio et al

Filing 7

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Doc. 1 ), 30-Day Deadline, signed by Magistrate Judge Jennifer L. Thurston on 10/22/2015. First Amended Complaint due by 11/30/2015. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES W. WINDHAM,
Plaintiff,

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Case No. 1:15-cv-01224-JLT (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.

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(Doc. 1)
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RUBIO, et al.,
30-DAY DEADLINE
Defendants.

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I.

Screening Requirement
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, malicious, fail to state a claim upon which relief may be granted, or that seek monetary

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

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§ 1915(e)(2)(B)(i)-(iii).

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II.

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Summary of Plaintiff=s Complaint
Plaintiff complains of incidents that occurred at California State Prison - Corcoran ("CSP-

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Cor") in Corcoran, California. Plaintiff names the following Defendants in their individual

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capacity: Guards R. Rubio, J. Vargas, and T. Cano; and Warden Dave Davey. Plaintiff seeks

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monetary damages.

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Plaintiff alleges that his "trial books, evidence, etc." from another case (Windham v.

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Borden, et al., in the Central District) were "stolen" and that his "personal law books, case files,

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copies, etc." have been withheld since "December 2014 & July/Aug. 2014" and that he "needs all

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of it to properly respond/plead." (Doc. 1.) Plaintiff alleges that these actions violated his right of

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access to the courts and to due process.
Plaintiff has not stated any cognizable claims, but may be able to correct the deficiencies

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in his pleading so to state a cognizable claim. Thus, the Court provides him the pleading

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standards and legal standards for his two delineated claims as well as leave to file a first amended

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complaint.

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III.

Pleading Requirements

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A. Federal Rule of Civil Procedure 8(a)

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"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited

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exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a).

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"Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.

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Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is

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plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual
allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S.
Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.
While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft,
580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally
and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze

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v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may

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not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit

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Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266,

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268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal-

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Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

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“facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
If he chooses to file a first amended complaint, Plaintiff should make it as concise as

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possible and no more than 25 pages in length. He is required only to state which of his

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constitutional rights he feels were violated by each Defendant and the factual basis supporting the

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claims.

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B. Linkage Requirement

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The Civil Rights Act provides:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. ' 1983. The statute plainly requires that there be an actual connection or link between
the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See

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Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). The Ninth Circuit has held that A[a] person >subjects= another to the deprivation of a

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constitutional right, within the meaning of section 1983, if he does an affirmative act, participates

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in another=s affirmative acts or omits to perform an act which he is legally required to do that

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causes the deprivation of which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th

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Cir. 1978). To state a claim for relief under section 1983, Plaintiff must link each named

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defendant with some affirmative act or omission that demonstrates a violation of Plaintiff=s

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federal rights.

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Plaintiff fails to link any of the named Defendants to his allegations. Plaintiff must clearly

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state which Defendant(s) he feels are responsible for each violation of his constitutional rights

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and their factual basis as his complaint must put each Defendant on notice of Plaintiff=s claims

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against him or her. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).

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C. Exhibits

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Plaintiff's Complaint indicates that some documentation of his underlying action Windham

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v. Borden, et al." is attached as an appendix, but no such is attachment was submitted.

In any

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event, the Court is not a repository for the parties' evidence. Originals, or copies of evidence (i.e.,

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prison or medical records, witness affidavits, etc.) need not be submitted until the course of

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litigation brings the evidence into question (for example, on a motion for summary judgment, at

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trial, or when requested by the Court). If Plaintiff attaches exhibits to his amended complaint,

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each exhibit must be specifically referenced. Fed. R. Civ. Pro. 10(c). For example, Plaintiff must

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state "see Exhibit A" or something similar in order to direct the Court to the specific exhibit

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Plaintiff is referencing. Further, if the exhibit consists of more than one page, Plaintiff must

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reference the specific page of the exhibit (i.e. "See Exhibit A, page 3").

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At this point, it is premature to submit evidence. Plaintiff is reminded that, for screening

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purposes, the Court must assume that Plaintiff's factual allegations are true. It is unnecessary for

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a plaintiff to submit exhibits in support of the allegations in a complaint. Thus, if Plaintiff

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chooses to file a first amended complaint, he would do well to simply state the facts upon which

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he alleges a Defendant has violated his constitutional rights and refrain from submitting exhibits.

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IV.

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Claims for Relief
A. Access to Courts
Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey,

518 U.S. 343, 346 (1996). Claims for infringement of access to the courts may arise from the
frustration or hindrance of Aa litigating opportunity yet to be gained@ (forward-looking access
claim) or from the loss of a meritorious suit that cannot now be tried (backward-looking claim).
Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). In either instance, Athe injury requirement
is not satisfied by just any type of frustrated legal claim.@ Lewis, 518 U.S. at 354. Inmates do not

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enjoy a constitutionally protected right Ato transform themselves into litigating engines capable of

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filing everything from shareholder derivative actions to slip-and-fall claims.@ Id. at 355. Rather,

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the type of legal claim protected is limited to direct criminal appeals, habeas petitions, and civil

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rights actions such as those brought under section 1983 to vindicate basic constitutional rights.

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Id. at 354 (quotations and citations omitted). AImpairment of any other litigating capacity is

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simply one of the incidental (and perfectly constitutional) consequences of conviction and

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incarceration.@ Id. at 355 (emphasis in original).

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To assert a forward-looking access claim, the non-frivolous “underlying cause of action
and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice

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to a defendant.” Christopher v. Harbury, 536 U.S. 403, 416 (2002). To state such a claim, the

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plaintiff must describe this “predicate claim . . . well enough to apply the ‘non-frivolous' test and

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to show that the ‘arguable’ nature of the underlying claim is more than hope.” Id. It is not

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enough for Plaintiff merely to conclude that the claim was non-frivolous. Instead, the complaint

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should “state the underlying claim in accordance with Federal Rule of Civil Procedure 8(a) just as

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if it were being independently pursued, and a like plain statement should describe any remedy

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available under the access claim and presently unique to it.” Id. at 417–418.

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Moreover, when a prisoner asserts that he was denied access to the courts and seeks a

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remedy for a lost opportunity to present a legal claim, he must show: (1) the loss of a non-

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frivolous or arguable underlying claim; (2) the official acts that frustrated the litigation; and (3) a

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remedy that may be awarded as recompense, but that is not otherwise available in a future suit.

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Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir.2007) (citing Christopher, 536 U.S. at 413–414,

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overruled on other grounds, Hust v. Phillips, 555 U.S. 1150, 129 S.Ct. 1036, 173 L.Ed.2d 466
(2009)).
Plaintiff's allegations under this claim are too generic. The Court cannot determine the
type of action he pursued in Windham v. Borden, et al. and the result therein is likewise unknown.
B. Due Process
Plaintiff alleges that his legal property and evidence was stolen and that his law books,
case files, copies, and the like are still being withheld.

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The Due Process Clause protects prisoners from being deprived of property without due

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process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and prisoners have a protected

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interest in their personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). However,

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while an authorized, intentional deprivation of property is actionable under the Due Process

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Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984) (citing Logan v. Zimmerman Brush

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Co., 455 U.S. 422 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), neither negligent

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nor unauthorized intentional deprivations of property by a state employee Aconstitute a violation

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of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a

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meaningful postdeprivation remedy for the loss is available,@ Hudson v. Palmer, 468 U.S. 517,

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533 (1984).
An authorized, intentional deprivation of property is actionable under the Due Process

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Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984) (citing Logan v. Zimmerman Brush

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Co., 455 U.S. 422 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985); is carried out

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pursuant to established state procedures, regulations, or statutes, Logan v. Zimmerman Brush Co.,

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455 U.S. at 436; Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v.

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City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987); and is permissible if carried out pursuant

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to a regulation that is reasonably related to a legitimate penological interest, Turner v. Safley, 482

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U.S. 78, 89 (1987).

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AAn unauthorized intentional deprivation of property by a state employee does not

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constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth

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Amendment if a meaningful postdeprivation remedy for the loss is available.@ Hudson v. Palmer,

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468 U.S. 517, 533 (1984). Where, as here, Plaintiff alleges that his legal property was "stolen,"
California law provides a meaningful postdeprivation remedy such that Plaintiff's claim would
not be cognizable.
Plaintiff has not alleged sufficient facts for the Court to determine whether the deprivation
was authorized or unauthorized. Plaintiff's use of the word "stolen" is a mere conclusion without
factual support and does not demonstrate the taking of which he complains was unauthorized.
Further, Plaintiff has not alleged any facts suggesting that he was deprived of due process. As

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long as Plaintiff was provided with appropriate process, prison officials may deprive him of his

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property.

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C. California Tort Claims Act

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Under the California Tort Claims Act (“CTCA”), set forth in California Government Code

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sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public

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employee or entity unless the plaintiff first presented the claim to the California Victim

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Compensation and Government Claims Board, and the Board acted on the claim, or the time for

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doing so expired. “The Tort Claims Act requires that any civil complaint for money or damages

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first be presented to and rejected by the pertinent public entity.” Munoz v. California, 33

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Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995).
The purpose of this requirement is “to provide the public entity sufficient information to

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enable it to adequately investigate claims and to settle them, if appropriate, without the expense of

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litigation.” City of San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797 (1974)

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(citations omitted). Compliance with this “claim presentation requirement” constitutes an

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element of a cause of action for damages against a public entity or official. State v. Superior

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Court (Bodde), 32 Cal.4th 1234, 1244, 13 Cal.Rptr.3d 534 (2004).

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Federal courts likewise must require compliance with the CTCA for pendant state law

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claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d

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702, 704 (9th Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477

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(9th Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983,

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may proceed only if the claims were first presented to the state in compliance with the CTCA.

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Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th Cir.1988); Butler v. Los
Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008).
D. Supervisory Liability
It appears that Plaintiff may have named Warden Davey merely based on the supervisorial
aspects of a warden's positions. However, supervisory personnel are generally not liable under
section 1983 for the actions of their employees under a theory of respondeat superior and,
therefore, when a named defendant holds a supervisory position, the causal link between him and

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the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d

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858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442

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U.S. 941 (1979). To state a claim for relief under section 1983 based on a theory of supervisory

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liability, Plaintiff must allege some facts that would support a claim that supervisory defendants

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either: personally participated in the alleged deprivation of constitutional rights; knew of the

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violations and failed to act to prevent them; or promulgated or "implemented a policy so deficient

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that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the

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constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations

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omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Under section 1983, liability may

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not be imposed on supervisory personnel for the actions of their employees under a theory of

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respondeat superior. Iqbal, 556 U.S. at 677. "In a § 1983 suit or a Bivens action - where masters

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do not answer for the torts of their servants - the term 'supervisory liability' is a misnomer." Id.

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Knowledge and acquiescence of a subordinate's misconduct is insufficient to establish liability;

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each government official is only liable for his or her own misconduct. Id.
A>[B]are assertions . . . amount[ing] to nothing more than a Aformulaic recitation of the

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elements@ of a constitutional discrimination claim,= for the purposes of ruling on a motion to

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dismiss [and thus also for screening purposes], are not entitled to an assumption of truth.@ Moss,

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572 F.3d at 969 (quoting Iqbal, 556 U.S. at 1951 (quoting Twombly, 550 U.S. at 555)). ASuch

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allegations are not to be discounted because they are >unrealistic or nonsensical,= but rather

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because they do nothing more than state a legal conclusion B even if that conclusion is cast in the

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form of a factual allegation.@ Id.
Thus, any allegations that Warden Davey is because of the acts of those under his or her

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supervision will not state a cognizable claim.
IV.

CONCLUSION
For the reasons set forth above, Plaintiff's Complaint is DISMISSED with leave to file a

first amended complaint within thirty days. If Plaintiff needs an extension of time to comply with
this order, Plaintiff shall file a motion seeking an extension of time no later than thirty days from
the date of service of this order.

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Plaintiff must demonstrate in any first amended complaint how the conditions complained

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of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d

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227 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named

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defendant is involved. There can be no liability under section 1983 unless there is some

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affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Plaintiff's first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and

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plain statement must "give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v.

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Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the "[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. 127, 555

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(2007) (citations omitted).

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Plaintiff is further advised that an amended complaint supercedes the original, Lacey v.

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Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29,

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2012) (en banc), and must be "complete in itself without reference to the prior or superceded

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pleading," Local Rule 220.

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The Court provides Plaintiff with one, final opportunity to amend to cure the deficiencies

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identified by the Court in this order. 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 first

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

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complaints).
Based on the foregoing, it is HEREBY ORDERED that:
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Plaintiff's Complaint is DISMISSED with leave to amend;

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The Clerk's Office shall send Plaintiff a civil rights complaint form;

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Within 30 days Plaintiff must file a first amended complaint curing the
deficiencies identified by the Court in this order; and

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If Plaintiff fails to comply with this order, this action will be dismissed for failure

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to obey a court order and for failure to state a claim.

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IT IS SO ORDERED.
Dated:

October 22, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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