Morales v. Rademaker et al

Filing 10

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/21/2011 ORDERING that the 8 first amended complaint is DISMISSED with leave to file a second amended complaint within 30 days.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENITO MORALES,

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Plaintiff,

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No. CIV S-11-0380 CKD P

vs.
RADEMAKER, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis. He seeks

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relief pursuant to 42 U.S.C. § 1983. After plaintiff’s original complaint in this action was

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dismissed with leave to amend, plaintiff filed a First Amended Complaint on July 13, 2011.

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(Dkt. No. 8.)

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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. 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915A(b)(1),(2).

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

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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). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “The pleading must

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contain something more...than...a statement of facts that merely creates a suspicion [of] a legally

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cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure

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1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, ___

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U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

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In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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In the First Amended Complaint, plaintiff alleges that he is confined in

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Administrative Segregation at the Yolo County Jail, and that defendants have impeded his

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participation in a lawsuit in the Yolo County Superior Court, which plaintiff is litigating pro se.

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He claims that defendants denied him materials needed to litigate his case such as “copies of

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exhibits and affidavits,” and also denied him library access and phone calls. Plaintiff also alleges
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that defendants are denying him the ability to contact “investigator, experts, legal runner, [and]

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witnesses.” Plaintiff alleges that, a result of defendants’ actions, the superior court denied his

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suppression motion on March 10, 2011. (Dkt. No. 8 at 3-4.) However, plaintiff does not

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describe the nature of his lawsuit in the Yolo County Superior Court or explain why his

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underlying claims in that case have merit. Nor has he clearly alleged whether, aside from the

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superior court’s denial of his motion to suppress, he suffered any other negative consequences

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due to his lack of access to the courts.

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Prisoners do “have a constitutional right to petition the government for redress of
their grievances, which includes a reasonable right of access to the courts.” O’Keefe v. Van

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Boening, 82 F.3d 322, 325 (9th Cir.1996); accord Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir.

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1995). The Supreme Court has held that “the fundamental constitutional right of access to the

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courts requires prison authorities to assist inmates in the preparation and filing of meaningful

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legal papers by providing prisoners with adequate law libraries or adequate assistance from

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persons who are trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977). To establish a

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violation of the right to access to the courts, however, a prisoner must allege facts sufficient to

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show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions of

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confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a result.

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Lewis v. Casey, 518 U.S. 343, 353–55 (1996). An “actual injury” is defined as “actual prejudice

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

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or to present a claim.” Id. at 348; see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 1994);

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Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall, 83 F.3d 1083, 1093 (9th

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Cir. 1996).

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Here, plaintiff has failed to alleged why defendants’ actions have precluded his

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pursuit of a non-frivolous direct or collateral attack upon either his criminal conviction or

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sentence or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to

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access to the courts protects only an inmate’s need and ability to “attack [his] sentence
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[ ], directly or collaterally, and ... to challenge the conditions of [his] confinement.”). In

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addition, plaintiff must also describe the non-frivolous nature of the “underlying cause of action,

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whether anticipated or lost.” Christopher v. Harbury, 536 U.S. 403, 415 (2002).

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In short, plaintiff has not alleged that “a complaint he prepared was dismissed,” or

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that he was “so stymied” by any individual defendant’s actions that “he was unable to even file a

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complaint,” direct appeal or petition for writ of habeas corpus that was not “frivolous.” Lewis,

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518 U.S. at 351; Christopher, 536 U.S. at 416 (“like any other element of an access claim [,] ...

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the predicate claim [must] be described well enough to apply the ‘nonfrivolous’ test and to show

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that the ‘arguable’ nature of the underlying claim is more than hope.”). Therefore, plaintiff’s

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access to courts claims must be dismissed for failing to state a claim upon which section 1983

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relief can be granted.

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Plaintiff will be granted leave to file a second amended complaint within 30 days

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of service of this order. If plaintiff chooses to amend the complaint, plaintiff must demonstrate

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how the conditions complained of have resulted in a deprivation of plaintiff’s constitutional

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rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in

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specific terms how each named defendant is involved. There can be no liability under 42 U.S.C.

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§ 1983 unless there is some affirmative link or connection between a defendant’s actions and the

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claimed deprivation. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976); May v. Enomoto, 633

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F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Furthermore, vague and conclusory allegations of official participation 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).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in

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order to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that the First Amended

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Complaint (Dkt. No. 8) is dismissed for the reasons discussed above, with leave to file a second

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amended complaint within thirty days from the date of service of this order. Failure to file a

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second amended complaint will result in a recommendation that the action be dismissed.

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Dated: December 21, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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