Dicey v. Smith

Filing 11

ORDER signed by Magistrate Judge Gregory G. Hollows on 10/9/2012 ORDERING that the 10 amended complaint is DISMISSED, with leave to file a second amended complaint, within twenty-eight days from the date of service of this order. Failure to file a second amended complaint will result in this action being dismissed. No further amendments will be allowed. (Zignago, 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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BERLAN LYNELL DICEY,

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Plaintiff,

No. 2:12-cv-1407 GGH P

vs.
OSCAR J. SMITH,

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Defendant.

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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. This proceeding was referred to this court by Local Rule

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302 pursuant to 28 U.S.C. § 636(b)(1). This case is before the undersigned pursuant to plaintiff’s

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consent. Doc. 5. Plaintiff’s original complaint was dismissed and plaintiff has filed an amended

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complaint.

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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, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more...than...a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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

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

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v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (quoting Twombly, 550 U.S. at 570). “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, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff,

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and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct.

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1843 (1969).

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Plaintiff has essentially repeated the allegations of the original complaint, but has

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failed to provide additional information that was needed, as described in the prior screening

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order. In 2005 plaintiff filed a different civil rights complaint against a guard. In 2007, the guard

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was dismissed from the complaint, and plaintiff now alleges that in 2008, that guard searched
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plaintiff’s cell and confiscated items in retaliation for the filing of the 2005 complaint. Other

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than stating that the guard retaliated, plaintiff provides no support for this allegation, nor does

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plaintiff state how he knows this information.1 Simply stating that a defendant retaliated against

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a plaintiff, without more, is insufficient to state a claim. Moreover, the amount of time elapsed

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between the operative events makes a retaliation complaint implausible. “[A] complaint must

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contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

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face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (quoting Twombly, 550 U.S.

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at 570).

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Plaintiff also states that his legal and inmate appeal materials were taken in

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several cases and appeals which hindered his ability to litigate those cases and appeals.

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However, plaintiff was previously told that to establish a claim for any violation of the right of

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access to the courts, plaintiff must prove an actual injury by showing that his efforts to pursue a

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non-frivolous claim concerning his conviction or conditions of confinement has been hindered.

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Simply stating that materials were taken is insufficient. For example, plaintiff states that

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discovery evidence was taken and never returned but provides no more specific information on

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how this affected his ability to litigate that specific case. The amended complaint is dismissed

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with leave to file a second amended complaint within twenty-eight days of service of this order.

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Failure to file a second amended complaint will result in the action being dismissed. No further

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amendments will be allowed.

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To the extent that plaintiff is seeking to proceed on a claim of having been

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deprived of certain items of personal property, the United States Supreme Court has held that “an

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unauthorized intentional deprivation of property by a state employee does not constitute a

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violation of the procedural requirements of the Due Process Clause of the Fourteenth

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Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson v.

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Most of the items taken were returned to plaintiff.
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Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194 (1984); Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir.

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1989) (“[i]n Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908 (1981),2 the Court held that where a

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deprivation of property resulted from the unpredictable negligent acts of state agents, the

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availability of an adequate state postdeprivation remedy satisfied the requirement of due

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process.”) Thus, where the state provides a meaningful postdeprivation remedy, only

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authorized, intentional deprivations constitute actionable violations of the Due Process Clause.

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An authorized deprivation is one carried out pursuant to established state procedures, regulations,

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or statutes. Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City

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of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). The California Legislature has provided a

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remedy for tort claims against public officials in the California Government Code, §§ 900, et seq.

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Prisoners have a constitutional right to be afforded “a reasonably adequate

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opportunity to present claimed violations of fundamental constitutional rights to the courts.”

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Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174 (1996). This right applies to prisoners’

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challenges to their convictions or sentences or conditions of confinement. Id. at 354. Prison

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officials may not “actively interfer[e] with inmates’ attempts to prepare legal documents or file

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them.” Id. at 350. To establish a claim for any violation of the right of access to the courts,

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prisoners must prove an actual injury by showing that their efforts to pursue a non-frivolous

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claim concerning their conviction or conditions of confinement has been hindered. Id. at 350-55.

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To state a viable claim for retaliation in violation of the First Amendment in the

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prison context, a plaintiff must show five basic elements: “(1) An assertion that a state actor took

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some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and

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that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the

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action did not reasonably advance a legitimate correctional goal.” Brodheim v. Cry, 584 F.3d

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1262, 1269 (9th Cir. 2009) (quoting Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)).

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Overruled on another ground by Daniels v. Williams, 474 U.S. 327, 330-331, 106 S. Ct.
662, 664 (1986).
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Mere conclusions of hypothetical retaliation will not suffice, a prisoner must “allege specific

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facts showing retaliation because of the exercise of the prisoner’s constitutional rights.” Frazier

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v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990). Adverse action is action that “would chill a

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person of ordinary firmness” from engaging in the protected activity. Pinard v. Clatskunie

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School Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006). Plaintiff need not show that “‘his speech was

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actually inhibited or suppressed,’ but rather that the adverse action at issue ‘would chill or silence

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a person of ordinary firmness from future First Amendment activities.’” Brodheim at 1271.

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Plaintiff also bears the burden of pleading and proving the absence of legitimate correctional

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goals for the conduct of which he complains. Id.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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

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how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless

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there is some affirmative link or connection between a defendant’s actions and the claimed

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deprivation. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976); May v. Enomoto, 633 F.2d

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

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vague and conclusory allegations of official participation in civil rights violations are not

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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 15-220 requires that an

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amended complaint be complete in itself without reference to any prior pleading. This is

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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

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alleged.
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In accordance with the above, IT IS HEREBY ORDERED that the amended

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complaint is dismissed for the reasons discussed above, with leave to file a second amended

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complaint, within twenty-eight days from the date of service of this order. Failure to file a

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second amended complaint will result in this action being dismissed. No further amendments

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will be allowed.

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DATED: October 9, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH: AB
dice1407.b2

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