LeGree v. Singh

Filing 5

ORDER signed by Magistrate Judge John F. Moulds on 02/06/13 denying 2 Motion to Proceed IFP. Should plaintiff decide to proceed further with this action, he will be required to submit a complete in forma pauperis application including a certified copy of his inmate trust account statement. This action is construed as a civil rights action pursuant to 42 USC 1983 and, so construed, it is dismissed for failure to state a claim upon which relief may be granted. (Plummer, 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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BENJAMIN LEGREE,

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Plaintiff,

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No. 2:12-cv-2504 JFM P

vs.
V. SINGH, Warden,

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Defendant.

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ORDER
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Plaintiff is a state prisoner proceeding pro se with a civil action and has requested

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leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff, the only party to

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appear in this action, has consented to proceed before a United States Magistrate Judge pursuant

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to 28 U.S.C. § 636(c). Plaintiff filed his initial pleading on a form petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Plaintiff alleges that prison officials at California Medical

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Facility in Vacaville, California (CMF) violated his constitutional rights by interfering with his

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right to access the courts by failing to mail a petition for writ of habeas corpus to the United

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States Supreme Court. Plaintiff seeks injunctive relief in the form of an order permitting him to

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file his habeas corpus claim in that Court. The court construes this action as a civil rights action

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pursuant 42 U.S.C. § 1983.

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Plaintiff has not filed a certified copy of his prison trust account statement for the

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six month period immediately preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2).

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For that reason, plaintiff’s October 5, 2012 motion to proceed in forma pauperis will be denied

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without prejudice. Should plaintiff decide to proceed further with this action, he will be required

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to submit a complete in forma pauperis application including a certified copy of his inmate trust

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account statement.

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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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Plaintiff alleges that in May 2009 he presented a writ of habeas corpus to staff at

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CMF for mailing to the United States Supreme Court. Plaintiff waited fourteen months and

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received no confirmation that the writ had been received in that Court. Thereafter, plaintiff

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pursued prison administrative remedies, which he alleges revealed that the cost of mailing the

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petition had been deducted from his inmate trust account but had never been mailed to the U.S.

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Supreme Court. Documents appended to plaintiff’s initial pleading show that in the grievance

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process prison officials found that $2.75 had been withdrawn from petitioner’s account on May
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13, 2009 for legal mail, no documentation confirming that the petition had been sent out could be

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found, and it was “likely” the petition was sent but since it had not been logged as outgoing mail

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the cost of the postage would be refunded to petitioner. Ex. J to Initial Pleading, filed October 5,

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2012 (Doc. No. 1), at 1-2.

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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 state a cognizable claim, plaintiff must allege facts which, if proved, would show that

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defendants by their acts prevented him from bringing, or caused him to lose, an actionable claim

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of this type. Id.

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Review of documents appended to the petition and relevant dockets in the United

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States Court of Appeals for the Ninth Circuit and the U.S. Supreme Court shows the following.

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The claim at bar follows petitioner’s 1997 conviction, pursuant to a no contest plea, to charges of

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second degree murder. See Ex. B to Initial Pleading. On May 10, 2009, petitioner signed a

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document styled as a petition for writ of habeas corpus to the United States Supreme Court,

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seeking to “appeal from denial of the United States Court of Appeals for the Ninth Circuit” and

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to file a petition for writ of habeas corpus alleging ineffective assistance of counsel. Ex. A to

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Initial Pleading, at 1. Specifically, petitioner sought to raise a claim that his counsel had

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provided ineffective assistance by advising petitioner that if he wanted adequate medical care his

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only option in the criminal proceedings against him was to plead guilty to second degree murder.

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Id. Petitioner raised that claim in a federal petition for writ of habeas corpus which was denied

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by the United States District Court for the Northern District of California on November 14, 2001.

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Ex. F to Initial Pleading. On October 23, 2002, that decision was affirmed by the United States
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Court of Appeals for the Ninth Circuit. Ex. E to Initial Pleading. The docket of the United

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States Supreme Court includes a case No. 06-7460, which is a petition for writ of habeas corpus

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and motion for leave to proceed in forma pauperis filed by petitioner in that court on June 6,

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2006.1 That petition was denied on November 27, 2006. On January 23, 2009, the United States

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Court of Appeals for the Ninth Circuit denied petitioner’s application for leave to file a second or

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successive habeas corpus petition. Ex. G to Initial Pleading.

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Plaintiff cannot show that any alleged failure to mail the May 2009 petition for

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writ of habeas corpus to the United States Supreme Court caused him to lose an actionable

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habeas corpus claim. Petitioner lost the ineffective assistance counsel claim contained in the

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May 2009 petition in 2001, when the United States District Court for the Northern District of

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California denied the claim. That decision was affirmed by the United States Court of Appeals

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for the Ninth Circuit in 2002. In 2006, the United States Supreme Court denied a petition for writ

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of habeas corpus, the contents of which are unknown, filed by plaintiff in that Court. Nearly

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three years later, that United States Court of Appeals for the Ninth Circuit denied petitioner’s

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request for leave to proceed with a second or successive petition. Even if it could be proved that

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prison officials failed to mail the May 2009 petition for writ of habeas corpus to the U.S.

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Supreme Court, there is no possibility that plaintiff could prevail on his claim that in so doing

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prison officials caused him to lose the ineffective assistance of counsel claim that had already

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been denied almost eight years earlier.

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For the foregoing reasons, plaintiff has failed to state a claim upon which relief
may be granted and this action must therefore be dismissed. See 28 U.S.C. § 1915A.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s October 5, 2012 motion to proceed in forma pauperis (Doc. No. 2) is

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denied without prejudice. Should plaintiff decide to proceed further with this action, he will be

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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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required to submit a complete in forma pauperis application including a certified copy of his

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inmate trust account statement.

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2. This action is construed as a civil rights action pursuant to 42 U.S.C. § 1983

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and, so construed, it is dismissed for failure to state a claim upon which relief may be granted.

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See 28 U.S.C. § 1915A.

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DATED: February 6, 2013.

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