Harris v. Velo-Lopez et al

Filing 15

ORDER DISMISSING CASE signed by Magistrate Judge Michael J. Seng on 10/11/2016. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEVONTE BERNARD HARRIS,

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Plaintiff,

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v.

CASE NO. 1:15-cv-01629-MJS (PC)
ORDER DISMISSING CASE
(ECF No. 14)

I. VELO-LOPEZ, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate

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Judge jurisdiction. (ECF No. 7.) His second amended complaint (“SAC”) is before the

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Court for screening.

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I.

Screening Requirement

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The in forma pauperis statute provides, “Notwithstanding any filing fee, or any

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portion thereof, that may have been paid, the court shall dismiss the case at any time if

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the court determines that . . . the action or appeal . . . fails to state a claim upon which

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relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

Pleading Standard

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under the color of state

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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d

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1243, 1245 (9th Cir. 1987).

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

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

Plaintiff’s Allegations

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All acts giving rise to this action occurred while Plaintiff was housed at California

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State Prison (“CSP”) in Corcoran, California. Plaintiff names “Principal” B. Van Klaverin,

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Senior Librarian R. Rosenthal, Correctional Officer I. Velo-Lopez, Library Technician

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Assistant J. Guzman, Lieutenant F. Martinez, and R. Moser as Defendants.

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This action arises out of Plaintiff’s failure to timely appeal the judgment in an

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unrelated state court case. He argues that the Defendants denied him access to the law

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library and use of its computer search engines to determine the correct deadline for filing

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his appeal.

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A.

The State Court Case

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In February 2010, Plaintiff filed a lawsuit in the Del Norte Superior Court (“the

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state court case”) against staff members at Pelican Bay State Prison (“PBSP”), Harris v.

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Gardner, Case No. 10-1076, for, inter alia, interfering with Plaintiff’s ability to conduct a

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private telephone call with his attorney. His lawsuit alleged “numerous causes of action

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regarding denial of privacy in his legal call with [his attorney], including eavesdropping

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on an attorney/client conversation under California Penal Code § 636(b).”

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Plaintiff gives two dates for the state court judgment. He first contends that the

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state court entered judgment on October 27, 2010, but that neither the court clerk nor

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the defendants served a copy of it on him. He then claims that judgment was entered on

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June 1, 2011, after the state court granted defendants’ motion for judgment on the

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pleadings. On receiving notice of this second judgment, Plaintiff filed an appeal on

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August 2, 2011. On October 3, 2011, Plaintiff’s appeal was dismissed as untimely

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because only the October 2010 judgment was appealable, not the June 2011 judgment.

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B.

Physical Access to the Law Library

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On January 21, 2011, Plaintiff used the CSP law library as a Priority Legal User

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(“PLU”), i.e., an inmate with verifiable legal deadline within thirty days. During this

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session, Defendant Velo-Lopez charged Plaintiff with disciplinary misconduct (a serious

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rule violation) and terminated his library session. This charge also resulted in a 30-day

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suspension of PLU status.

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Within the 30-day suspension period, Plaintiff requested PLU access three times

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and was denied each time by Defendant Guzman. Plaintiff also requested three blank

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PLU forms, but none were provided..

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Following the 30-day suspension period, Guzman granted Plaintiff PLU status on

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February 25. Successively-granted PLU requests maintained Plaintiff’s PLU status up

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through May 18. Although Plaintiff was granted PLU status, Guzman denied him physical

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access to the law library for 90 days; Plaintiff was only allowed to use the prison’s paging

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system. Plaintiff contends this denial was without authorization.

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On March 14, Velo-Lopez and Guzman “manipulated” Defendant Martinez into

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formally authorizing the denial of physical access under the pretext that the serious rule

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violation had been referred to the district attorney for prosecution. On March 25, the

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district attorney informed CSP that Plaintiff would not be prosecuted for the serious rule

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violation.

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On April 21, Plaintiff was found guilty of the January 21 serious rule violation. He
was able to physically access the law library once again on April 28.

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Plaintiff filed a grievance on March 24 regarding the denial of physical access to

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the law library. Plaintiff’s appeal was ultimately denied on April 25 by Defendants

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Rosenthal, Mosef and Van Klaverin.

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IV.

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Analysis
Prisoners have a constitutional right to meaningful access to the courts. Silva v.

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DiVittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011). The right of access to the courts

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protects prisoners' right to file civil actions that have “a reasonable basis in law or fact”

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without “active interference” by the government. Id. at 1102-03 (internal quotation marks

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and emphasis omitted). The right of access to the courts “does not require prison

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officials to provide affirmative assistance in the preparation of legal papers,” but does

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prohibit states from “erecting barriers that impede the right of access of incarcerated

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persons,” such as by depriving prisoners of the “tools necessary to challenge their

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sentences or conditions of confinement.” Id. at 1102-03 (internal brackets and quotation

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marks omitted). Therefore, the Supreme Court has held that prison authorities must

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provide prisoners with “adequate law libraries” to enable them to pursue their claims.

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Bounds v. Smith, 430 U.S. 817, 828 (1977).

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To state a claim for denial of access to the courts, prisoners must allege an actual

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injury, i.e., that some official action has frustrated or is impeding plaintiff's attempt to

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bring a nonfrivolous legal claim. Nevada Dept. of Corrections v. Greene, 648 F.3d 1014,

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1018 (9th Cir. 2011). Specifically, in a “backward-looking” access to the courts action,1 a

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plaintiff must describe (1) a nonfrivolous underlying claim that was allegedly

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compromised “to show that the ‘arguable’ nature of the claim is more than hope”; (2) the

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official acts that frustrated the litigation of that underlying claim; and (3) a “remedy

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available under the access claim and presently unique to it” that could not be awarded

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by bringing a separate action on an existing claim. Christopher v. Harbury, 536 U.S. 403,

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416 (2002).

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Plaintiff accuses the Defendants of interfering with his ability to physically access

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the law library, thereby preventing him from determining the correct appeal filing

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deadline in his state court case. He claims that as a result, he missed an opportunity to

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challenge the dismissal of a non-frivolous access-to-court claim asserting lack of privacy

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in a phone call with his attorney. Court records, however, reveal that Plaintiff asserted

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this claim against the PBSP defendants in the Northern District of California, where

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judgment was entered on the merits for the defendants on November 12, 2010. Harris v.

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Gardner, 3:09-cv-4037 RS PS (N.D. Cal.). Since Plaintiff was not hindered in his efforts

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to bring an access-to-court claim against those defendants, he has not suffered actual

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injury and therefore fails to state a claim.

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The Supreme Court distinguishes between “forward-looking” access to the courts claims, in which the
plaintiff alleges that official action is frustrating plaintiff's ability to prepare and file a suit at the present
time, and “backward-looking” claims, in which plaintiff alleges that due to official action, a specific case
cannot now be tried, or be tried with all material evidence. In a backward-looking claim, plaintiff must
allege facts showing that the official action resulted in the “loss of an opportunity to sue” or the “loss or
inadequate settlement of a meritorious case.” Christopher v. Harbury, 536 U.S. 403, 413-14 (2002).

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V.

Conclusion

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Plaintiff’s Second Amended Complaint fails to state a cognizable claim. Any

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further leave to amend reasonably appears futile and will be denied. Accordingly, it is

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HEREBY ORDERED that this action is dismissed with prejudice.

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IT IS SO ORDERED.
Dated:

October 11, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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