Hampton v. Virga et al

Filing 12

ORDER signed by Magistrate Judge Dale A. Drozd on 09/25/15 ordering plaintiff's first amended complaint 10 is dismissed. Plaintiff is granted 30 days from the date of service of this order to file a second amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES HAMPTON,

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No. 13-cv-00923 JAM DAD P

Plaintiff,
v.

ORDER

TIM VIRGA, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed

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pursuant to 42 U.S.C. § 1983. By order filed March 21, 2014, plaintiff’s complaint was

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dismissed with leave to file an amended complaint. Plaintiff has since filed a first amended

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complaint. (FAC, ECF No. 10.)

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The court is required to screen complaints brought by prisoners seeking relief against a

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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 (9th
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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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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (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. at 555. In

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reviewing a complaint under this standard, the court must accept as true the allegations of the

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complaint. See Hosp. Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976). The court must

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also construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the

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plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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In the FAC, plaintiff identifies former California State Prison-Sacramento Warden Tim

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Virga and Correctional Officer A. Agnone as defendants in this action. (ECF No. 10 at 1, 2.)

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However, plaintiff’s FAC contains no allegations describing any acts or omissions of defendant

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Warden Virga.

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Plaintiff alleges as follows in his FAC. At all pertinent times, plaintiff was incarcerated at

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California State Prison-Sacramento (“CSP-SAC”). There, plaintiff “was known as a jailhouse

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lawyer . . . .” (ECF No. 10 at 3.) Plaintiff suffers from a mobility impairment, a fact that is

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known to defendant Agnone. (Id. at 4.) At an unspecified point in time, defendant Agnone wrote

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a rules violation report, citing plaintiff for “not standing during count.” (Id.) It appears, though

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plaintiff does not explicitly allege, that plaintiff was unable to stand on the occasion in question

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due to his mobility impairment. (Id.) Plaintiff then filed an administrative grievance alleging

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disability discrimination by defendant Agnone for writing the rules violation report. (Id.) At the
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time a response to the grievance was returned, defendant Agnone removed property, including

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legal materials, from plaintiff’s cell “until due process was up.”1 (Id.) When challenged,

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defendant Agnone returned a television to plaintiff’s cell, but not the legal materials that had been

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seized therefrom. (Id.)
At another, presumably later, point in time, when plaintiff’s cell-block at CSP-SAC was

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on lockdown, defendant Agnone deprived plaintiff of all of his law books. (ECF No. 10 at 4.)

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Due to the lockdown, plaintiff was also unable to access the law library. (Id.) Plaintiff contends

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that, by depriving him of necessary legal materials, defendant Agnone thereby ensured that he

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(Agnone) would not be held liable for discriminating against plaintiff. (Id.)

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According to plaintiff, defendant Agnone performed all of these actions in order to deny
plaintiff access to the courts. (ECF No. 10 at 4.)

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As currently pled, plaintiff’s FAC fails to state a claim for relief. It appears that plaintiff

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may be attempting to allege that defendant Agnone retaliated against him for filing inmate

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grievances. The following standards apply to such a claim. It is well-established that prison

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inmates have a constitutional right to freedom from retaliation for engaging in activity protected

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by the First Amendment. Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005). A retaliation claim

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brought by an inmate has five elements. First, the plaintiff must allege and demonstrate that he

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was engaged in conduct protected by the First Amendment. See Watison v. Carter, 668 F.3d

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1108, 1114 (9th Cir. 2012). Second, a “plaintiff must claim that the defendant took adverse

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action against the plaintiff.” Id. (citing Rhodes, 408 F.3d at 567). “The adverse action need not

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be an independent constitutional violation.” Id. (citing Pratt v. Rowland, 65 F.3d 802, 806 (9th

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Cir. 1995)). Third, plaintiff must allege and prove a causal connection between the protected

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conduct and the adverse action. Id. Fourth, the plaintiff must allege and prove either a chilling

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effect on the exercise of First Amendment rights or some other harm. Id. Finally, plaintiff must

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allege and show that the retaliatory action ‘“did not advance legitimate goals of the correctional

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institution . . . .’” Id. (quoting Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)).

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The court is uncertain what plaintiff means in using this phrase.
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In his FAC, plaintiff has satisfactorily alleged four of these five elements. First, plaintiff

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has alleged that, by filing an inmate grievance against defendant Agnone, plaintiff engaged in

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conduct protected under the First Amendment. Plaintiff has also alleged that defendant Agnone

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took adverse action against him, by removing legal materials and other property from his cell.

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While plaintiff could have more explicitly pled a causal connection between these actions, the

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allegation that defendant Agnone removed plaintiff’s property after plaintiff received a response

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to his inmate grievance against defendant Agnone is sufficient to satisfy this element for pleading

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purposes. Finally, plaintiff has alleged that his legal materials were removed in order to deny him

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access to the courts, i.e., an illegitimate correctional goal. However, plaintiff has failed to allege

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in sufficient detail the harm that allegedly resulted from defendant Agnone’s adverse action

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against him. Statements such as “my property couldn’t be found until due process was up” and

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“C/O Agnone granted his self (sic) immunity” lack sufficient factual content to provide notice of

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how the alleged removal of plaintiff’s legal property impaired plaintiff’s ability to proceed on his

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inmate grievances. Nonetheless, plaintiff will be granted an opportunity to remedy this

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deficiency in a second amended complaint if he wishes to pursue this action.

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It also appears that plaintiff is attempting to bring a claim against defendant Agnone for

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interference with plaintiff’s right of access to the courts, based on the removal of plaintiff’s legal

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materials. The right of access to the courts “forbids states from ‘erect[ing] barriers that impede

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the right of access of incarcerated persons’” to file civil actions that have a “‘reasonable basis in

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law or fact.’” Silva v. DeVittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (quoting Snyder v. Nolen,

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380 F.3d 279, 290 (7th Cir. 2004) and John L. v. Adams, 969 F.2d 228, 235 (6th Cir. 1992)). A

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prisoner asserting any denial of access to the courts claim must allege the anticipated or lost

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underlying cause of action as well an ‘“actual injury,’ – that is ‘actual prejudice with respect to

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contemplated or existing litigation, such as the inability to meet a filing deadline or to present a

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claim.’” Lewis v. Casey, 518 U.S. 343, 348 (1996). See also Christopher v. Harbury, 536 U.S.

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403, 415 (2002); Nevada Dept. of Corrs. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011). If

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plaintiff chooses to proceed with this claim in a second amended complaint, he must provide

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therein factual allegations that, if proven, would demonstrate that he suffered an actual injury

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under the standard set forth above.

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Although the Federal Rules adopt a flexible pleading policy, under Federal Rule of Civil

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Procedure 8(a)(2), a complaint must give fair notice to the defendants and must allege facts that

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support the elements of the claim plainly and succinctly. Jones v. Cmty. Redev. Agency, 733

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F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity

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overt acts which defendants engaged in that support his claims. Id. Because plaintiff has failed to

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comply with the requirements of Rule 8(a)(2), his first amended complaint must be dismissed. In

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the interests of justice, the court will grant plaintiff leave to file a second amended complaint.

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If plaintiff chooses to file a second amended complaint, plaintiff must allege facts

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demonstrating how the conditions complained of resulted in a deprivation of plaintiff’s federal

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constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Any second

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amended complaint plaintiff may elect to file must allege in specific terms how each named

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defendant was involved in the deprivation of plaintiff’s rights. There can be no liability under 42

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U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s actions

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and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (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). Vague and

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conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v.

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Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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Plaintiff is also reminded that the court cannot refer to prior pleadings in order to make his

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second amended complaint complete. Local Rule 220 requires that an amended complaint be

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

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amended complaint supersedes prior complaints. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967). Once plaintiff files a second amended complaint, the prior complaints no longer serve any

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function in the case. Therefore, in any amended complaint, as in an original complaint, each

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claim and the involvement of each defendant must be sufficiently alleged.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s first amended complaint (ECF No. 10) is dismissed.

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2. Plaintiff is granted thirty days from the date of service of this order to file a second

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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 second amended complaint must bear the

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docket number assigned to this case and must be labeled “Second Amended Complaint”; failure

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to file a second amended complaint in accordance with this order will result in a recommendation

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that this action be dismissed without prejudice.

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Dated: September 25, 2015

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DAD:10
hamp0923.14am.dad

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