Burnett v. Lima et al

Filing 22

ORDER adopting 20 FINDINGS AND RECOMMENDATIONS and dismissing certain of Plaintiff's claims signed by District Judge Dale A. Drozd on 11/29/2017. Defendants, M. Lefler (Correctional Officer); L. Lima (Law Librarian); Heather Ayon (Correctional Officer) and R. D. Cranston Correctional Officer) dismissed from action. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARLOS BURNETT,

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No. 1:16-cv-01671-DAD-SAB

Plaintiff,

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v.

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L. LIMA, et al.,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN OF PLAINTIFF’S CLAIMS
Defendants.

(Doc. Nos. 18, 20, 21)

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

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civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.
On September 5, 2017, plaintiff filed his first amended complaint. (Doc. No. 18.) On

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September 15, 2017, the assigned magistrate judge issued findings and recommendations,

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recommending that plaintiff’s access to courts claim against defendants Lima, Ayon, and Cranton

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be dismissed, and that the action proceed on plaintiff’s claims of excessive force and failure to

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protect against defendant Constello, Urban, and Jones. (Doc. No. 20.) The parties were provided

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fourteen days during which to file objections to those findings and recommendations. (Id.)

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Plaintiff did so on September 28, 2017. (Doc. No. 21.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a

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de novo review of this case. Having carefully reviewed the entire file, the court finds the findings

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and recommendations to be supported by the record and by proper analysis.
The court has reviewed plaintiff’s objections and finds them to lack merit. As noted in the

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findings and recommendations, a plaintiff proceeding on an access to courts claim must allege

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facts demonstrating that plaintiff suffered actual injury, that is, “actual prejudice to contemplated

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or existing litigation.” (Doc. No. 20 at 2–3) (quoting Nev. Dep’t of Corr. v. Greene, 648 F.3d

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1014, 1018 (9th Cir. 2011)). Moreover, a plaintiff must allege facts demonstrating that the legal

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claim plaintiff sought to pursue was “nonfrivolous.” Lewis v. Casey, 518 U.S. 343, 353 (2006).

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In both his first amended complaint and his objections, plaintiff contends that the

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constitutional violation is itself the injury. (See Doc. No. 18 at 5; Doc. No. 21 at 1.) This

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argument is contrary to the Ninth Circuit’s decision in Greene in which the court held that “actual

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injury is a jurisdictional requirement that flows from the standing doctrine and may not be

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waived.” Id. (quoting Lewis, 518 U.S. at 348). Plaintiff has stated no facts that would allow the

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court to conclude that his inability to access the prison law library frustrated his ability to

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prosecute his claim. Moreover, plaintiff has not alleged any facts which, if true, would enable the

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court to conclude that the legal claim he sought to pursue was non-frivolous. Instead, plaintiff

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has merely provided the court with conclusory statements that the claim he sought to pursue “had

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merit” and “was nonfrivolous.” (Doc. No. 21 at 2.)

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For these reasons,

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The findings and recommendations dated September 15, 2017 (Doc. No. 20) are
adopted in full;

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2.

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Plaintiff’s access to the courts claim against defendants Lima, Ayon, and Cranton
is dismissed for failure to state a cognizable claim for relief;

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3.

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This action shall proceed on plaintiff’s excessive force and failure to protect
claims against defendants Constello, Urban, and Jones; and

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4.

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This action is referred back to the assigned magistrate judge for initiation of
service of process and further proceedings.

IT IS SO ORDERED.
Dated:

November 29, 2017
UNITED STATES DISTRICT JUDGE

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