Scott v. Virga

Filing 54

ORDER signed by Magistrate Judge Allison Claire on 9/9/15 ORDERING that Defendants' motion to dismiss (ECF No. 48 ) is granted on the grounds that plaintiff has failed to allege sufficient personal involvement of the individual defendants and the second amended complaint (ECF No. 38 ) is dismissed. Plaintiff is granted thirty days from the date of service of this order to file a third amended complaint.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL E. SCOTT,

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Plaintiff,

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No. 2:12-cv-2326 KJM AC P

v.

ORDER

TIM VIRGA, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Currently before the court is defendants’ fully briefed motion to dismiss. ECF

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No. 48.

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I.

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Plaintiff’s Allegations
This case proceeds on the second amended complaint. ECF No. 38. In the complaint,

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plaintiff alleges that defendants Virga, Nappi, Hamad, Shannon, Williams, and Kostecky violated

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his First and Fourteenth Amendment rights of access to the courts. Id. Following the denial of

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his federal habeas corpus petition by the United States District Court for the Northern District of

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California in case 3:06-cv-01147-JSW, and the denial of a certificate of appealability by the Ninth

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Circuit Court of Appeals, plaintiff sought to petition the United States Supreme Court for a non-

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frivolous writ of certiorari. Id. at 4-56 ¶¶ 5, 7, 16. However, during the time plaintiff was

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attempting to prepare his petition for certiorari, the prison unit in which he was housed was
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placed on lockdown/modified program which prevented him from visiting the law library to

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access materials to complete his petition. Id. at 4-5, ¶¶ 6-12. Plaintiff had no involvement in the

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incidents that caused the lockdown and prison officials were aware of his upcoming court

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deadline due to the “Inmate Appeal forms, Inmate Request for Interview forms” and other

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correspondence that plaintiff submitted advising them of that deadline. Id. at 4, ¶¶ 6, 7. There

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were no alternative means to obtain law library access because the paging system was inadequate

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and impossible to conduct legal research with. Id., ¶ 8. As a result, plaintiff was unable to timely

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file a certiorari petition with the United States Supreme Court. Id. at 5, ¶¶ 13, 14.

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The issue plaintiff sought to appeal to the Supreme Court dealt with whether Crawford v.

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Washington, 541 U.S. 36 (2004), applied to his case. Id., ¶ 17. In his federal habeas petition

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plaintiff argued that his rights under the Confrontation Clause were violated because the out-of-

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court statements that he was the murderer, made by three non-testifying witnesses, were admitted

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into evidence through the testimony of Sergeant Louis Cruz. Id. at 6, ¶ 18A. Plaintiff claims that

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because his conviction was not finalized until after the decision in Crawford was issued, the

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district court was mistaken when it found that Crawford did not apply retroactively to his case.

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Id. at 5, 13-15, ¶¶ 17, 18.

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Plaintiff seeks declaratory relief, unspecified injunctive relief, and compensatory and

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punitive damages against defendants. Id. at 3, 8.

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II.

Motion to Dismiss

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A.

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In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a

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complaint must contain more than a “formulaic recitation of the elements of a cause of action;” it

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must contain factual allegations sufficient to “raise a right to relief above the speculative level.”

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). “The pleading must

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

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

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Procedure ' 1216, pp. 235-36 (3d ed. 2004)). “[A] complaint must contain sufficient factual

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

Legal Standard for Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6)

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556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility

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when the plaintiff pleads factual content that allows the court to draw the reasonable inference

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that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

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In considering a motion to dismiss, the court must accept as true the allegations of the

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complaint in question, Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976), and construe

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the pleading in the light most favorable to the party opposing the motion and resolve all doubts in

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the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421. The court will “‘presume that

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general allegations embrace those specific facts that are necessary to support the claim.’” Nat’l

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Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of

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Wildlife, 504 U.S. 555, 561 (1992)). The court need not accept legal conclusions “cast in the

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form of factual allegations.” W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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B.

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Under the First and Fourteenth Amendments to the Constitution, state inmates have a

Legal Standard for Access to the Courts Claim

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fundamental constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346

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(1996); Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir. 2007), overruled on other grounds by Hust

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v. Phillips, 555 U.S. 1150 (2009). The right is limited to direct criminal appeals, habeas petitions,

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and civil rights actions. Lewis, 518 U.S. at 354. Prisoners do not, however, have a constitutional

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right to a law library. Id., 518 U.S. at 350-51. Law libraries are just one means of assuring

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prisoners meaningful access to the courts. Id.

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Claims for denial of access to the courts may arise from the frustration or hindrance of “a

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litigating opportunity yet to be gained” (forward-looking access claim) or from the loss of a

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meritorious suit that cannot now be tried (backward-looking claim). Christopher v. Harbury, 536

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U.S. 403, 412-15 (2002). For backward-looking claims, plaintiff “must show: 1) the loss of a

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‘nonfrivolous’ or ‘arguable’ underlying claim; 2) the official acts frustrating the litigation; and 3)

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a remedy that may be awarded as recompense but that is not otherwise available in a future suit.”

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Phillips, 477 F.3d at 1076 (citing Christopher, 536 U.S. at 413-14).

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To have standing to bring this claim, plaintiff must allege he suffered an actual injury.
Lewis, 518 U.S. at 351-52; Vandelft v. Moses, 31 F.3d 794, 798 (9th Cir. 1994). To succeed, a
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prisoner must have been denied the necessary tools to litigate a nonfrivolous claim attacking a

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conviction, sentence, or conditions of confinement. Christopher, 536 U.S. at 415; Lewis, 518

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U.S. at 353 & n.3. Plaintiff need not show that he would have been successful on the merits of

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his claims, but only that they were not frivolous. Allen v. Sakai, 48 F.3d 1082, 1085 & n.12 (9th

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Cir. 1994). “A claim is frivolous if it is without arguable merit either in law or fact.” Bilal v.

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Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (citations omitted). The Ninth Circuit has

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emphasized that “[a] prisoner need not show, ex post, that he would have been successful on the

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merits had his claim been considered. To hold otherwise would permit prison officials to

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substitute their judgment for the courts’ and to interfere with a prisoner’s right to court access on

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the chance that the prisoner’s claim would eventually be deemed frivolous.” Allen, 48 F.3d at

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1085. To properly plead a denial of access to the courts claim, “the complaint should state the

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underlying claim in accordance with Federal Rule of Civil Procedure 8(a), just as if it were being

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independently pursued, and a like plain statement should describe any remedy available under the

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access claim and presently unique to it.” Christopher, 536 U.S. at 417-18.

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C.

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Defendants argue that the second amended complaint should be dismissed because

Discussion

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plaintiff has failed to adequately plead sufficient personal involvement by any of the defendants

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in the violation of his constitutional rights and because plaintiff has failed to allege that

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prohibiting access to the law library during a lockdown is a constitutional violation. ECF No. 48-

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1. Personal Involvement
There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or

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causal connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode,

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423 U.S. 362, 371 (1976); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). The second

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amended complaint alleges only that plaintiff’s constitutional rights were violated by “the

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defendants” generically. ECF No. 38. Plaintiff does not, at any time, identify the specific acts of

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any defendant. Id. However, the proposed third amended complaint, attached to plaintiff’s

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response to the motion to dismiss, demonstrates that plaintiff is capable of curing this deficiency
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through amendment. ECF No. 51 at 5-13. Therefore, defendants’ motion to dismiss will be

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granted on the grounds that plaintiff has failed to allege sufficient personal involvement of the

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defendants and plaintiff will be afforded an opportunity to file an amended complaint as set forth

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below in Section III.

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2. Constitutional Violation
Defendants also argue that the second amended complaint should be dismissed because

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plaintiff fails to allege facts that would show the lockdown was not reasonably related to

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legitimate penological objectives. ECF No. 48-1 at 5-6. In support of their argument Defendants

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rely on Fosselman v. Hidalgo, 1:11-cv-00575-AWI-MJS (PC), 2012 WL 484699, at *5 (E.D. Cal.

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Feb. 14, 2012), in which the district court screened out the plaintiff’s access to the courts claim

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because the plaintiff had sufficiently meaningful access to the courts and alternatively did not

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present any “evidence demonstrating why the program lock-down was instituted, or that it was

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other than reasonably related to legitimate penological objectives.” Id. at 6. Fosselman is not

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controlling, and even if it were, it is distinguishable from the instant case.

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In Fosselman, the plaintiff alleged only that the lockdown “only affected prisoners of

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Afrikan decent” and “caused many problems with the court” such as late filings. Fosselman,

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2012 WL 484699, at *2. While plaintiff in this case does allege that he was included in the

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lockdown or modified program based solely on his race, he also alleges that the paging system

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was inadequate, that he requested to be moved to another section of the prison where he would be

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allowed access to the law library, and that there is precedent for transferring inmates or escorting

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inmates to the law library. ECF No. 38 at 4-5, ¶¶ 6, 8, 10, 15. In determining whether a prison

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regulation affecting constitutional rights is reasonable, the policy must be analyzed under Turner

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v. Safely, 482 U.S. 78 (1987). The four factors that must be considered under Turner are (1)

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whether there is a “‘valid, rational connection’ between the prison regulation and the legitimate

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governmental interest;” (2) “whether there are alternative means of exercising the right that

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remain open;” (3) the impact of accommodating the constitutional right; and (4) “the absence of

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ready alternatives.” Id. at 89-90. Even if the court assumes there was a rational connection

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between the lockdown and a legitimate government interest, the additional allegations by plaintiff
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implicate the second and fourth Turner factors, and, if true, would indicate those factors weigh in

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plaintiff’s favor. The court therefore finds that at the pleading stage, plaintiff has sufficiently

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alleged the restrictions he was subject to were not reasonable and therefore violated his rights.

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Defendants’ argument that plaintiff’s allegations regarding the adequacy of the paging

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system are insufficient (ECF No. 52 at 2) is without merit. Plaintiff alleges that “the paging

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system is inadequate, and impossible to conduct legal research, find case law regarding his issues

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without being able to check out the legal books.” “In reviewing a motion to dismiss pursuant to

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Rule 12(b)(6), [the court] must accept as true all factual allegations in the complaint and draw all

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reasonable inferences in favor of the nonmoving party.” Retail Prop. Trust v. United Bhd. Of

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Carpenters and Joinders of Am., 768 F.3d 938, 945 (9th Cir. 2014) (citing Silvas v. E*Trade

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Mortg. Corp., 514 F.3d 1001, 1003 (9th Cir. 2008)). While additional facts regarding the

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specifics of the paging system would no doubt be beneficial, the facts as currently alleged are

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sufficient to support the reasonable inference that plaintiff is claiming that in order to conduct

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legal research using the paging system, he must first have access to the legal books to know what

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to request and that he cannot access the legal books without first going to the law library.

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D.

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Defendants’ motion to dismiss will be granted on the grounds that plaintiff has failed to

Conclusion

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allege sufficient personal involvement by the individual defendants.

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III.

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Leave to Amend
Plaintiff has included a proposed third amended complaint with his response to

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defendants’ motion to dismiss. ECF No. 51 at 5-13. Because deficiencies remain with respect to

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the allegations against some defendants, the court will disregard the proposed third amended

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complaint and plaintiff shall be given leave to file a third amended complaint to cure the

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deficiencies.

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If plaintiff chooses to file a third amended complaint, he must demonstrate how the

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conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo,

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423 U.S. at 371. Also, the complaint must allege in specific terms how each named defendant is

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involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative
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link or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “vague and conclusory allegations of

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official participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d

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266, 268 (9th Cir. 1982) (citations omitted). In other words, plaintiff must identify the specific

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actions of each defendant, not simply make claims against “the defendants” generically.

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Additionally, there is no respondeat superior liability under § 1983. Taylor v List, 880

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F.2d 1040, 1045 (9th Cir. 1989). “A defendant may be held liable as a supervisor under § 1983

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‘if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a

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sufficient causal connection between the supervisor’s wrongful conduct and the constitutional

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violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885

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F.2d 642, 646 (9th Cir. 1989)). Supervisory liability may also exist without any personal

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participation if the official implemented “a policy so deficient that the policy itself is a

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repudiation of the constitutional rights and is the moving force of the constitutional violation.”

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Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and internal

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quotations marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825

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(1970). Therefore, to the extent plaintiff seeks to bring claims against supervisors, he cannot

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simply rely on their position as supervisors and must identify the actions taken by the individuals

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that violated or led to the violation of his rights or identify the deficient policy the supervisor

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implemented.

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Finally, “inmates lack a separate constitutional entitlement to a specific prison grievance

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procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855

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F.2d 639, 640 (9th Cir. 1988) (“There is no legitimate claim of entitlement to a grievance

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procedure.”)). Accordingly, the prison grievance procedure does not confer any substantive

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constitutional rights upon inmates and actions in reviewing and denying inmate appeals generally

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do not serve as a basis for liability under section 1983. Id.; George v. Smith, 507 F.3d 605, 609

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(7th Cir. 2007). The Seventh Circuit has observed:

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Only persons who cause or participate in the violations are
responsible. Ruling against a prisoner on an administrative
complaint does not cause or contribute to the violation. A guard
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who stands and watches while another guard beats a prisoner
violates the Constitution; a guard who rejects an administrative
complaint about a completed act of misconduct does not.

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George, 507 F.3d at 609-10. However, because prison administrators cannot willfully turn a

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blind eye to constitutional violations being committed by subordinates, an individual who denies

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an inmate appeal and who had the authority and opportunity to prevent an ongoing constitutional

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violation could potentially be subject to liability if the individual knew about an existing or

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impending violation and failed to prevent it. See e.g., Jett v. Penner, 439 F.3d 1091, 1098 (9th

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Cir. 2006). So, to the extent plaintiff seeks to bring claims against defendants based on their

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involvement in the grievance process, he must allege sufficient facts to show that the individual

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was aware of an ongoing violation of his rights and had the authority and opportunity to intervene

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or take some other corrective action.
In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make his third amended complaint complete. Local Rule 220 requires that an amended complaint

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

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“[t]he amended complaint supersedes the original, the latter being treated thereafter as non-

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existent.” Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967), overruled in part by Lacey v. Maricopa

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Cnty., 693 F.3d 896, 929 (9th Cir. 2012) (claims dismissed with prejudice and without leave to

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amend do not have to be re-pled in subsequent amended complaint to preserve appeal). Once

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plaintiff files a third amended complaint, the previous pleading no longer serves any function in

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the case. Therefore, in a third amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged.

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IV.

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Conclusion
For the reasons set forth above, defendants’ motion to dismiss will be granted and plaintiff

shall be given leave to file a third amended complaint.

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IT IS HEREBY ORDERED that:

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1. Defendants’ motion to dismiss (ECF No. 48) is granted on the grounds that plaintiff

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has failed to allege sufficient personal involvement of the individual defendants and the second

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amended complaint (ECF No. 38) is dismissed.
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2. Plaintiff is granted thirty days from the date of service of this order to file a third

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amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules

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of Civil Procedure, and the Local Rules of Practice; the third amended complaint must bear the

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docket number assigned this case and must be labeled “Third Amended Complaint”; plaintiff

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must file an original and two copies of the third amended complaint; failure to file a third

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amended complaint in accordance with this order will result in dismissal of this action.

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DATED: September 9, 2015

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