Scott v. Virga

Filing 63

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 12/28/16 ORDERING that within 30 days of the filing of this order, defendants Hamad and Shannon must respond to the third amended complaint 59 . Also, RECOMMENDING that the claims against defendant Virga be dismissed without leave to amend. Referred to Judge Kimberly J. Mueller. Objections due within 21 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL EARL SCOTT,

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Plaintiff,

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v.

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

ORDER AND FINDINGS AND
RECOMMENDATIONS

TIM VIRGA, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983.

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Currently before the court is plaintiff’s third amended complaint. ECF No. 59. This proceeding

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was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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I.

Statutory Screening of Prisoner Complaints
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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

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A claim “is [legally] frivolous where 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 (9th

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Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably
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meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona,

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885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute

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on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490

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

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has an arguable legal and factual basis. Id.

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“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim, a complaint must contain more

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

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allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations

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omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that

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merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original)

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(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ' 1216 (3d

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ed. 2004)).

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

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Atl. Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint

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under this standard, the court must accept as true the allegations of the complaint in question,

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Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading

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in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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II.

Complaint

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In the complaint, plaintiff alleges that defendants Virga, Hamad, and Shannon violated his

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First and Fourteenth Amendment rights of access to the courts. ECF No. 59 at 8, ¶ 25. Following
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the denial of his federal habeas corpus petition by the United States District Court for the

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Northern District of California in case 3:06-cv-01147-JSW, and the denial of a certificate of

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appealability by the Ninth Circuit Court of Appeals, plaintiff sought to petition the United States

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Supreme Court for a non-frivolous writ of certiorari. Id. at 4, 6 ¶¶ 5, 7, 16. However, during the

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time plaintiff was attempting to prepare his petition for certiorari, the prison unit in which he was

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housed was placed on lockdown/modified program which prevented him from visiting the law

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

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involvement in the incidents that caused the lockdown and prison officials were aware of his

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upcoming court deadline due to the “Inmate Appeal forms, Inmate Request for Interview forms”

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

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

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

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

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14.

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Plaintiff alleges that as the warden, defendant Virga was responsible creating,

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maintaining, and enforcing policies at the prison and he was also responsible for supervising and

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training correctional officers and staff at the prison. Id. at 6-7, ¶ 20. Defendant Hamad was the

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Supervisor of Academic Instructions, handled plaintiff’s appeal, and had the authority to provide

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plaintiff with adequate physical access to the law library and to address the deficiencies with the

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paging service. Id. at 7, ¶¶ 21, 22. As a correctional captain, defendant Shannon was responsible

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for setting inmate access to the library during the lockdown and could have provided that physical

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access to the law library be granted upon verification of a court deadline. Id. at 7-8, ¶ 23.

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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. at 6, ¶ 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, ¶ 19. 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 6, ¶¶ 17, 18.

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Plaintiff seeks declaratory relief, unspecified injunctive relief, and compensatory and
punitive damages against defendants. Id. at 3, 10.
III.

Claims for Which a Response Will Be Required
Under the First and Fourteenth Amendments to the Constitution, state inmates have a

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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) (quoting Bounds v. Smith, 430 U.S. 817 (1977)); Phillips v. Hust, 477 F.3d 1070, 1075

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(9th Cir. 2007), overruled on other grounds by Hust v. Phillips, 555 U.S. 1150 (2009). The right

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is limited to direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at

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354. Prisoners do not, however, have a constitutional right to a law library. Id. at 350-51. Law

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libraries are just one means of assuring 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.

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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 where it lacks an arguable basis either in law or in fact.”

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Neitzke, 490 U.S. at 325. The Ninth Circuit has emphasized that “[a] prisoner need not show, ex

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post, that he would have been successful on the merits had his claim been considered. To hold
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otherwise would permit prison officials to substitute their judgment for the courts’ and to interfere

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with a prisoner’s right to court access on the chance that the prisoner’s claim would eventually be

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deemed frivolous.” Allen, 48 F.3d at 1085. To properly plead a denial of access to the courts

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claim, “the complaint should state the underlying claim in accordance with Federal Rule of Civil

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Procedure 8(a), just as if it were being independently pursued, and a like plain statement should

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describe any remedy available under the access claim and presently unique to it.” Christopher,

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536 U.S. at 417-18 (footnote omitted).

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Plaintiff’s allegations that defendant Hamad knew about his deadlines, was aware of his
inability to access the law library and the deficiencies in the paging system, and had the authority

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to provide plaintiff with the access he needed, are sufficient to state a claim for relief. The

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allegations that defendant Shannon was responsible for establishing the level of access inmates

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had to the library during the lockdown, could have provided that access would be granted upon

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verification of a court deadline, but did not do so even though there was precedent for such a

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provision, are also sufficient to state a claim for relief. Defendants Hamad and Shannon will be

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required to respond to the third amended complaint.

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IV.

Failure to State a Claim
In dismissing the second amended complaint, plaintiff was advised that there can be no

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liability under 42 U.S.C. § 1983 unless there is some affirmative link or causal connection

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between a defendant’s actions and the claimed deprivation. See ECF No. 54 at 4 (citing Rizzo v.

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

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was also advised that there is no respondeat superior liability under § 1983 and that “vague and

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conclusory allegations of official participation in civil rights violations are not sufficient.” Id. at

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6-7 (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted)).

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Plaintiff was also warned of the necessity for pleading personal involvement during the screening

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of his original complaint. ECF No. 6 at 4.

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The third amended complaint is primarily composed of allegations that plaintiff’s

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constitutional rights were violated by “the defendants” generically. ECF No. 59 at 3-6, 8-9. With

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respect to defendant Virga, plaintiff alleges only that Virga was responsible for the prison’s
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policies and supervising and training employees. Id. at 6-7. Plaintiff does not, at any time,

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identify any specific acts by Virga and Virga’s inclusion in the complaint appears to be based

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solely on his position as warden. Id. In light of plaintiff’s continued failure to allege any specific

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actions by Virga, the undersigned will recommend that the claims against defendant Virga be

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dismissed without leave to amend.

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V.

No Leave to Amend
For the reasons set forth above, the court finds that the complaint does not state

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cognizable claims against defendant Virga. If the court finds that a complaint or claim should be

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dismissed for failure to state a claim, the court has discretion to dismiss with or without leave to

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amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc). Leave to amend

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should be granted if it appears possible that the defects in the complaint could be corrected,

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especially if a plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103,

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1106 (9th Cir. 1995) (“A pro se litigant must be given leave to amend his or her complaint, and

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some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint

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could not be cured by amendment.”) (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.

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1987)). However, if, after careful consideration, it is clear that a claim cannot be cured by

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amendment, the Court may dismiss without leave to amend. Cato, 70 F.3d at 1005-06.

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The undersigned finds that, as set forth above, plaintiff has failed to state a claim for relief

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against defendant Virga. Moreover, despite guidance on the necessary pleading requirements and

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notification of the defects in his previous complaints (ECF No. 6 at 4; ECF No. 54 at 4, 6-7),

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plaintiff has still failed to allege any specific actions by defendant Virga. The court therefore

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concludes that further amendment would be futile. “A district court may deny leave to amend

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when amendment would be futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013).

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Accordingly, the undersigned recommends dismissing the claims against defendant Virga

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without leave to amend. While leave to amend “shall be freely given when justice so requires,”

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plaintiff has already been provided two opportunities to amend his complaint to correct

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deficiencies. See Fed.R.Civ.P. 15(a)(2); see also ECF No. 6; ECF No. 54. Further leave to

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amend is unwarranted and would likely be futile.
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VI.

Summary

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Plaintiff’s request to proceed in forma pauperis is granted.

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Defendants Hamad and Shannon will be required to respond to the third amended

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complaint. It is being recommended that defendant Virga be dismissed without leave to amend

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because plaintiff has not explained what Virga did to violate his rights. Being warden is not

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enough to make Virga responsible for a violation of plaintiff’s rights by others.

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In accordance with the above, IT IS HEREBY ORDERED that within thirty days of the

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filing of this order, defendants Hamad and Shannon must respond to the third amended complaint

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(ECF No. 59).

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IT IS FURTHER RECOMMENDED that the claims against defendant Virga be dismissed
without leave to amend.
These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: December 28, 2016

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