David v. Schwarzenegger et al

Filing 31

ORDER signed by Magistrate Judge Craig M. Kellison on 04/29/11 ordering plaintiff's amended complaint is dismissed for failure to state a claim. The clerk of the court is directed to enter judgment and close this case. CASE CLOSED. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID M. DAVID,

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No. CIV S-09-0092-CMK-P

Plaintiff,
vs.

ORDER

SCHWARZENEGGER, et al.,
Defendants.
/
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

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to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28

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U.S.C. § 636(c) and no other party has been served or appeared in the action. Pending before the

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court is plaintiff’s amended complaint (Doc. 25).

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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

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the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement
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of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means

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that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172,

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1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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Plaintiff’s original complaint was dismissed for failure to state a claim, and he

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was provided an opportunity to file an amended complaint. In the court’s order dismissing his

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original complaint, the undersigned set forth some basic principles as to what appeared to be his

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claims, including proper access to the court, use of excessive force, and supervisory liability.

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Plaintiff has now filed his amended complaint, wherein his claims continue to be vague and

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speculative.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff’s allegations are generally vague, conclusory and speculative. He

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basically alleges the entire criminal justice system in the State of California is a fraud. He claims

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the defendants have violated RICO by fraudulently collecting money from the federal

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government for housing wrongfully convicted prisoners. He states that prisoners are unable to

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successfully challenge their conviction due to the discrepancy between the resources they have

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and the resources the State has, and due to the ignorance, intelligence and lack of education of

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prisoners in general. It appears he is alleging that he is being confined unlawfully as he is

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actually innocent of the crimes he was convicted.

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Plaintiff also alleges he has been denied access to the law library, and has been

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denied legal supplies and copies of his legal papers. He has also been threatened by correctional

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officers for his attempted use of the law library, as well as subjected to the use of force wherein

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the officers physically restrained him from accessing the law library.

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II. DISCUSSION

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Most of plaintiff’s claims fail to specify how his rights were violated, and by

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whom. His allegations state that the “defendants” in generally acted inappropriately. Such vague

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claims are insufficient. To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an

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actual connection or link between the actions of the named defendants and the alleged

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deprivations. See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423

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U.S. 362 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within

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the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts, or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and

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conclusory allegations concerning the involvement of official personnel in civil rights violations

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are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the

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plaintiff must set forth specific facts as to each individual defendant’s causal role in the alleged

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constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Plaintiff only

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names a few specific defendants throughout his complaint, relying mostly on vague allegations

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relating to the “defendants.” Therefore, to the extent plaintiff’s allegations are that “defendants”

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somehow violated his rights, those allegations are insufficient. While this defect may be curable,

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plaintiff’s complaint suffers from other defects, as set forth below, which are not.

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Many, if not all, of plaintiff’s claims are legally frivolous as having no factual or

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legal basis. A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). When applied to a complaint, the term “frivolous” embraces both the inarguable

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legal conclusion and the fanciful factual allegation. See Neitzke, 490 U.S. at 325. The court

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may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal

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theory or where the factual contentions are clearly baseless. Id. at 327. The critical inquiry is

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whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual

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basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

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The court need not accept the allegations in the complaint as true, but must determine whether

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they are fanciful, fantastic, or delusional. See Denson v Hernandez, 504 U.S. 25, 33 (1992)

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(quoting Neitzke, 490 U.S. at 328). Finally, a complaint may be dismissed as frivolous if it

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merely repeats pending or previously litigated claims. See Cato v. United States, 70 F.3d 1103,

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1105 n.2 (9th Cir. 1995).

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A.

Excessive Force

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As plaintiff was previously informed, the treatment a prisoner receives in prison

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and the conditions under which the prisoner is confined are subject to scrutiny under the Eighth

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Amendment, which prohibits cruel and unusual punishment. See Helling v. McKinney, 509

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U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment

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“embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.”

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Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh

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and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison

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officials must provide prisoners with “food, clothing, shelter, sanitation, medical care, and

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personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official

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violates the Eighth Amendment only when two requirements are met: (1) objectively, the

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official’s act or omission must be so serious such that it results in the denial of the minimal
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civilized measure of life’s necessities; and (2) subjectively, the prison official must have acted

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unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834.

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Thus, to violate the Eighth Amendment, a prison official must have a “sufficiently culpable

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mind.” See id.

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When prison officials stand accused of using excessive force, the core judicial

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inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline, or

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maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992);

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Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The “malicious and sadistic” standard, as

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opposed to the “deliberate indifference” standard applicable to most Eighth Amendment claims,

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is applied to excessive force claims because prison officials generally do not have time to reflect

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on their actions in the face of risk of injury to inmates or prison employees. See Whitley, 475

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U.S. at 320-21. In determining whether force was excessive, the court considers the following

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factors: (1) the need for application of force; (2) the extent of injuries; (3) the relationship

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between the need for force and the amount of force used; (4) the nature of the threat reasonably

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perceived by prison officers; and (5) efforts made to temper the severity of a forceful response.

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See Hudson, 503 U.S. at 7. The absence of an emergency situation is probative of whether force

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was applied maliciously or sadistically. See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir.

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1993) (en banc). The lack of injuries is also probative. See Hudson, 503 U.S. at 7-9. Finally,

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because the use of force relates to the prison’s legitimate penological interest in maintaining

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security and order, the court must be deferential to the conduct of prison officials. See Whitley,

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475 U.S. at 321-22.

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Here, plaintiff makes some general allegations relating to being physically

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restrained from the law library, refers to assaults on inmates for filing 602 inmate grievances, and

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implied threats from correctional officers for attempted use of the law library. To the extent

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plaintiff is claiming interference with his access to the law library, and therefore denying his

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access to the courts, that issue is discussed below. As to plaintiff being physically restrained
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from the law library, plaintiff fails to assert how he was restrained, and by whom. Physical

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restraint does not necessary imply to use of excessive force, or any force. Physical restraint could

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simply be not opening the law library door or keeping the library closed during normal operating

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hours, which is what plaintiff alleges. Thus, his allegations are insufficient to state a claim for

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the use of excessive force.

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The closest plaintiff comes to actually setting forth any description of actual use

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of force relates to the destruction of a pen, which one officer allegedly purposefully crushed with

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his shoe. In addition, plaintiff makes allegations regarding implied and implicit threats,

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including the officers’ hands on pepper spray containers. Allegations of verbal harassment do

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not state a claim under the Eighth Amendment unless it is alleged that the harassment was

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“calculated to . . . cause [the prisoner] psychological damage.” Oltarzewski v. Ruggiero, 830

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F.2d 136, 139 (9th Cir. 1987); see also Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996),

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amended by 135 F.3d 1318 (9th Cir. 1998). There is no indication that any threat plaintiff

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received, either implied or implicit, was calculated to cause him psychological damage. Plaintiff

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had the opportunity to cure the defects relating to his claim of excessive force, which he has

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failed to do. Thus, it appears plaintiff is either unable or unwilling to cure the defects, and no

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further leave to amend should be granted.

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B.

Access to the Courts

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As plaintiff was also previously informed, prisoners have a First Amendment right

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of access to the courts. See Lewis v. Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430

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U.S. 817, 821 (1977); Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) (discussing the right in

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the context of prison grievance procedures). This right includes petitioning the government

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through the prison grievance process. See id. Prison officials are required to “assist inmates in

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the preparation and filing of meaningful legal papers by providing prisoners with adequate law

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libraries or adequate assistance from persons trained in the law.” Bounds, 430 U.S. at 828. The

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right of access to the courts, however, only requires that prisoners have the capability of bringing
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challenges to sentences or conditions of confinement. See Lewis, 518 U.S. at 356-57. Moreover,

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the right is limited to non-frivolous criminal appeals, habeas corpus actions, and § 1983 suits.

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See id. at 353 n.3 & 354-55. Therefore, the right of access to the courts is only a right to present

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these kinds of claims to the court, and not a right to discover claims or to litigate them effectively

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once filed. See id. at 354-55.

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As a jurisdictional requirement flowing from the standing doctrine, the prisoner

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must allege an actual injury. See id. at 349. “Actual injury” is prejudice with respect to

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contemplated or existing litigation, such as the inability to meet a filing deadline or present a

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non-frivolous claim. See id.; see also Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir. 2007).

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Delays in providing legal materials or assistance which result in prejudice are “not of

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constitutional significance” if the delay is reasonably related to legitimate penological purposes.

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Lewis, 518 U.S. at 362.

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Here, plaintiff outlines numerous times wherein he was denied access to the law

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library, was denied legal materials, and was denied copies of legal documents. He alleges the

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law library refused to make copies of his documents, thereby causing him to miss state filing

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deadlines. He states that he has filed documents in the state court, explaining the reason for the

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delay in filing, and he has not yet received confirmation as to whether his filings will be accepted

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as timely or not. Thus, to the extent plaintiff is able to state a claim for denial of access to the

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court for the librarian’s refusal to makes copies of documents or provide him materials, plaintiff

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fails to show he has suffered an actual injury. Any injury alleged, his late filing of documents in

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the state courts, is speculative at best as his filings have not been rejected. Thus, he fails to make

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an adequate showing of an actual injury.

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C.

Racketeer Influenced and Corrupt Organizations Act (RICO)

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Finally, plaintiff’s claims for violation of RICO, 18 U.S.C. §§ 1961-1968, are

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insufficient. “The elements of a civil RICO claim are as follows: ‘(1) conduct (2) of an

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enterprise (3) through a pattern (4) of racketeering activity (known as ‘predicate acts’) (5)
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causing injury to plaintiff’s business or property.’” Living Designs, Inc. v. E.I. Dupont de

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Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005) (quoting Grimmett v. Brown, 75 F.3d 506,

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510 (9th Cir. 1996); 18 U.S.C. § 1964(c), 1962(c)).

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It appears that the basis of his entire complaint is that he was wrongfully

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convicted, that due to his illegal incarceration he has lost his job, he is being threatened to not file

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appeals to challenge his illegal conviction, and that the state is fraudulently collecting money

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from the federal government based on his illegal conviction. He attempts to state a claim by

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insisting that the right to appeal is considered property, and that a threat intended to induce a

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dismissal of an appeal is extortion. He states he has suffered financial loss, to the extent of his

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salary of $750,000.
As stated above, claims that are legally frivolous are subject to summary

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dismissal. See Neitzke v. Williams, 490 U.S. 319, 325 (1989). Plaintiff’s allegations fail to

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raise above the speculative level, much less to the level of plausible. See Ashcroft v. Iqbal, 129

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S. Ct. 1937, 1949-50 (2009). While he may have standing to bring a civil RICO action, he fails

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to plead sufficient facts alleging that the defendants have engaged in a pattern of racketeering

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acts, much less that such acts caused injury to his business or property. He fails to provide any

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authority for his determination that a right to appeal is a property right. Thus, his compliant is

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insufficient to state a claim for a civil RICO action against the defendants.

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III. CONCLUSION
Plaintiff was previously informed what would be required in order to state a claim

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for his alleged constitutional violations. It appears that plaintiff is either unable or unwilling to

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cure the defects in his complaint. Because it does not appear possible that the deficiencies

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identified herein can be cured by amending the complaint, plaintiff is not entitled further leave to

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amend prior to dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131

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(9th Cir. 2000) (en banc).
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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s amended complaint is dismissed for failure to state a claim; and

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The Clerk of the Court is directed to enter judgment and close this case.

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DATED: April 29, 2011
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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