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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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 DEVONTE BERNARD HARRIS, 14 Plaintiff, 15 16 v. CASE NO. 1:15-cv-01629-MJS (PC) ORDER DISMISSING CASE (ECF No. 14) I. VELO-LOPEZ, et al., 17 Defendants. 18 19 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 20 rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate 21 Judge jurisdiction. (ECF No. 7.) His second amended complaint (“SAC”) is before the 22 Court for screening. 23 I. Screening Requirement 24 The in forma pauperis statute provides, “Notwithstanding any filing fee, or any 25 portion thereof, that may have been paid, the court shall dismiss the case at any time if 26 the court determines that . . . the action or appeal . . . fails to state a claim upon which 27 relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 28 1 II. Pleading Standard 2 Section 1983 “provides a cause of action for the deprivation of any rights, 3 privileges, or immunities secured by the Constitution and laws of the United States.” 4 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 5 Section 1983 is not itself a source of substantive rights, but merely provides a method for 6 vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 7 (1989). 8 To state a claim under § 1983, a plaintiff must allege two essential elements: 9 (1) that a right secured by the Constitution or laws of the United States was violated and 10 (2) that the alleged violation was committed by a person acting under the color of state 11 law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 12 1243, 1245 (9th Cir. 1987). 13 A complaint must contain “a short and plain statement of the claim showing that 14 the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 15 are not required, but “[t]hreadbare recitals of the elements of a cause of action, 16 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 17 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 18 Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief 19 that is plausible on its face.” Id. Facial plausibility demands more than the mere 20 possibility that a defendant committed misconduct and, while factual allegations are 21 accepted as true, legal conclusions are not. Id. at 677-78. 22 III. Plaintiff’s Allegations 23 All acts giving rise to this action occurred while Plaintiff was housed at California 24 State Prison (“CSP”) in Corcoran, California. Plaintiff names “Principal” B. Van Klaverin, 25 Senior Librarian R. Rosenthal, Correctional Officer I. Velo-Lopez, Library Technician 26 Assistant J. Guzman, Lieutenant F. Martinez, and R. Moser as Defendants. 27 28 2 1 This action arises out of Plaintiff’s failure to timely appeal the judgment in an 2 unrelated state court case. He argues that the Defendants denied him access to the law 3 library and use of its computer search engines to determine the correct deadline for filing 4 his appeal. 5 A. The State Court Case 6 In February 2010, Plaintiff filed a lawsuit in the Del Norte Superior Court (“the 7 state court case”) against staff members at Pelican Bay State Prison (“PBSP”), Harris v. 8 Gardner, Case No. 10-1076, for, inter alia, interfering with Plaintiff’s ability to conduct a 9 private telephone call with his attorney. His lawsuit alleged “numerous causes of action 10 regarding denial of privacy in his legal call with [his attorney], including eavesdropping 11 on an attorney/client conversation under California Penal Code § 636(b).” 12 Plaintiff gives two dates for the state court judgment. He first contends that the 13 state court entered judgment on October 27, 2010, but that neither the court clerk nor 14 the defendants served a copy of it on him. He then claims that judgment was entered on 15 June 1, 2011, after the state court granted defendants’ motion for judgment on the 16 pleadings. On receiving notice of this second judgment, Plaintiff filed an appeal on 17 August 2, 2011. On October 3, 2011, Plaintiff’s appeal was dismissed as untimely 18 because only the October 2010 judgment was appealable, not the June 2011 judgment. 19 B. Physical Access to the Law Library 20 On January 21, 2011, Plaintiff used the CSP law library as a Priority Legal User 21 (“PLU”), i.e., an inmate with verifiable legal deadline within thirty days. During this 22 session, Defendant Velo-Lopez charged Plaintiff with disciplinary misconduct (a serious 23 rule violation) and terminated his library session. This charge also resulted in a 30-day 24 suspension of PLU status. 25 Within the 30-day suspension period, Plaintiff requested PLU access three times 26 and was denied each time by Defendant Guzman. Plaintiff also requested three blank 27 PLU forms, but none were provided.. 28 3 1 Following the 30-day suspension period, Guzman granted Plaintiff PLU status on 2 February 25. Successively-granted PLU requests maintained Plaintiff’s PLU status up 3 through May 18. Although Plaintiff was granted PLU status, Guzman denied him physical 4 access to the law library for 90 days; Plaintiff was only allowed to use the prison’s paging 5 system. Plaintiff contends this denial was without authorization. 6 On March 14, Velo-Lopez and Guzman “manipulated” Defendant Martinez into 7 formally authorizing the denial of physical access under the pretext that the serious rule 8 violation had been referred to the district attorney for prosecution. On March 25, the 9 district attorney informed CSP that Plaintiff would not be prosecuted for the serious rule 10 violation. 11 12 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. 13 Plaintiff filed a grievance on March 24 regarding the denial of physical access to 14 the law library. Plaintiff’s appeal was ultimately denied on April 25 by Defendants 15 Rosenthal, Mosef and Van Klaverin. 16 IV. 17 Analysis Prisoners have a constitutional right to meaningful access to the courts. Silva v. 18 DiVittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011). The right of access to the courts 19 protects prisoners' right to file civil actions that have “a reasonable basis in law or fact” 20 without “active interference” by the government. Id. at 1102-03 (internal quotation marks 21 and emphasis omitted). The right of access to the courts “does not require prison 22 officials to provide affirmative assistance in the preparation of legal papers,” but does 23 prohibit states from “erecting barriers that impede the right of access of incarcerated 24 persons,” such as by depriving prisoners of the “tools necessary to challenge their 25 sentences or conditions of confinement.” Id. at 1102-03 (internal brackets and quotation 26 marks omitted). Therefore, the Supreme Court has held that prison authorities must 27 28 4 1 provide prisoners with “adequate law libraries” to enable them to pursue their claims. 2 Bounds v. Smith, 430 U.S. 817, 828 (1977). 3 To state a claim for denial of access to the courts, prisoners must allege an actual 4 injury, i.e., that some official action has frustrated or is impeding plaintiff's attempt to 5 bring a nonfrivolous legal claim. Nevada Dept. of Corrections v. Greene, 648 F.3d 1014, 6 1018 (9th Cir. 2011). Specifically, in a “backward-looking” access to the courts action,1 a 7 plaintiff must describe (1) a nonfrivolous underlying claim that was allegedly 8 compromised “to show that the ‘arguable’ nature of the claim is more than hope”; (2) the 9 official acts that frustrated the litigation of that underlying claim; and (3) a “remedy 10 available under the access claim and presently unique to it” that could not be awarded 11 by bringing a separate action on an existing claim. Christopher v. Harbury, 536 U.S. 403, 12 416 (2002). 13 Plaintiff accuses the Defendants of interfering with his ability to physically access 14 the law library, thereby preventing him from determining the correct appeal filing 15 deadline in his state court case. He claims that as a result, he missed an opportunity to 16 challenge the dismissal of a non-frivolous access-to-court claim asserting lack of privacy 17 in a phone call with his attorney. Court records, however, reveal that Plaintiff asserted 18 this claim against the PBSP defendants in the Northern District of California, where 19 judgment was entered on the merits for the defendants on November 12, 2010. Harris v. 20 Gardner, 3:09-cv-4037 RS PS (N.D. Cal.). Since Plaintiff was not hindered in his efforts 21 to bring an access-to-court claim against those defendants, he has not suffered actual 22 injury and therefore fails to state a claim. 23 24 25 1 26 27 28 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). 5 1 V. Conclusion 2 Plaintiff’s Second Amended Complaint fails to state a cognizable claim. Any 3 further leave to amend reasonably appears futile and will be denied. Accordingly, it is 4 HEREBY ORDERED that this action is dismissed with prejudice. 5 6 7 IT IS SO ORDERED. Dated: October 11, 2016 /s/ 8 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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