Hernandez v. Walker et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 6/18/11 ORDERING that the Clerk of the Court is directed to assign this action to a United States District Judge; RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, 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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ANTHONY PEREZ HERNANDEZ,
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Plaintiff,
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No. 2:11-cv-0588 DAD (PC)
vs.
JAMES WALKER, et al.,
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ORDER AND
Defendants.
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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42
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U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915.
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This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule
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302 and 28 U.S.C. § 636(b)(1).
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By order filed April 4, 2011, this court deferred ruling on plaintiff’s application to
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proceed in forma pauperis and granted plaintiff sixty days to file a request for voluntary dismissal
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of this action pursuant to Fed. R. Civ. P. 41(a) or to otherwise proceed. In the same order,
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plaintiff was advised that if he failed to do so the court would at the end of sixty days recommend
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dismissal of this action without prejudice absent changed circumstances. The sixty day period
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has passed and plaintiff has not responded in any way to the court’s April 4, 2011 order.
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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 an 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 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. See 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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Plaintiff’s complaint contains the following allegations. Plaintiff is seeking
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federal habeas corpus relief in an action now pending in the United States District Court for the
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Northern District of California. At present, plaintiff is waiting for the respondent to file an
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answer to that petition. On June 9, 2009, plaintiff received a letter from a field investigator
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employed by an attorney, advising plaintiff that on February 20, 2009, they had mailed to
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plaintiff a package containing CDs and a cassette tape for his habeas corpus actions. The
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package was mailed to plaintiff at California State Prison-Sacramento from San Jose, California.
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Plaintiff filed an inmate grievance, and was told by prison officials that there was no record of
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the package in question being received at the institution, but that plaintiff had signed for a legal
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mail package on March 13, 2009. However, plaintiff contends that the latter package contained
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five cassette tapes, and not the CDs described by the field investigator in his letter to plaintiff.
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Plaintiff contends that the missing CDs and cassette are “essential” to establish the unlawfulness
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of his conviction. Plaintiff seeks an order requiring defendants to provide him with the CDs and
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tape sent in the February 20, 2009 package or to obtain them from the Santa Clara County
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District Attorney’s Office. Plaintiff also seeks monetary and punitive damages.
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In Lewis v. Casey, 518 U.S. 343 (1996), the United States Supreme Court held
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that prison inmates have a constitutionally protected right to access the courts to bring civil rights
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actions to challenge their conditions of confinement and to bring challenges to their criminal
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convictions. Lewis v. Casey, 518 U.S. at 351. The right of access to the courts “guarantees no
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particular methodology but rather the conferral of a capability -- the capability of bringing
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contemplated challenges to sentences or conditions of confinement before the courts.” Id. at 356.
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To prevail on a claim of interference with access to the courts, plaintiff must present evidence,
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sufficient to create a genuine issue of material fact, that defendants by their acts prevented him
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from bringing, or caused him to lose, an actionable claim of this type. Id.
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Plaintiff’s habeas corpus action is still pending before in the United States District
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Court for the Northern District of California. He cannot, therefore, demonstrate in this civil
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rights action that he has lost his federal habeas corpus action, nor can he prove that defendants’
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acts or omissions caused him to fail to prevail in that habeas corpus action. For that reason, this
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civil rights action is premature and should be dismissed without prejudice.
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In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the
Court is directed to assign this action to a United States District Judge; and
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IT IS HEREBY RECOMMENDED that this action be dismissed without
prejudice.
These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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days after being served with these findings and recommendations, plaintiff may file written
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objections with the court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Any response to the objections shall be filed and served
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within fourteen days after service to the objections. Plaintiff is advised that failure to file
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objections within the specified time may waive the right to appeal the District Court’s order.
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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: June 18, 2011.
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DAD:12
hern0588.56
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