Bertram v. Virga

Filing 10

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/5/13 ORDERING that plaintiffs request to proceed in forma pauperis is granted. Plaintiffs request for appointment of counsel (ECF No. 8 ) is denied. The complaint is dismissed with leave to amend within 30 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY BERTRAM,

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Plaintiff,

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No. 2:13-cv-1452-TLN-EFB P

v.

SCREENING ORDER AND ORDER
GRANTING IFP

T. VIRGA,

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Defendant.

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Plaintiff is a former state prisoner proceeding without counsel in an action brought under

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42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in

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forma pauperis and a request for appointment of counsel.

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I.

IFP Application
Plaintiff has submitted the affidavit required by § 1915(a) showing that he is unable to

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prepay fees and costs or give security therefor. Accordingly, the request to proceed in forma

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pauperis will be granted. 28 U.S.C. § 1915(a).

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II.

Appointment of Counsel
Plaintiff requests that the court appoint counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

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to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935
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F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider the

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009). Having considered those factors, the court finds there are no exceptional

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circumstances in this case.

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III.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain 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 Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 129 S.

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Ct. 1937, 1949 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal,

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129 S. Ct. at 1949.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.
Twombly, 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.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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IV.

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Screening Order
The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and

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concludes that it must be dismissed with leave to amend for failure to state a claim upon which

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relief may be granted. To proceed, plaintiff must file an amended complaint.

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Plaintiff names Warden Virga and “Doe” mailroom staff as defendants. He alleges that on

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June 20, 2010, he gave “confidential legal mail” to a prison official for mailing “to the courts and

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a lawyer.” Nearly two years later, on April 20, 2012, plaintiff apparently received a memo from

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defendant Warden Virga, informing plaintiff that his “outgoing legal mail was never delivered”

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because “someone in the mailroom held onto [it].” As a result plaintiff claims that he “lost [his]

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appeal rights in 2 cases” and “lost [his] parental rights.” Plaintiff does not identify the particular

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employee who allegedly held onto his mail for nearly two years. Nor does he allege how

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defendant Virga was involved in the alleged violation of plaintiff’s rights. In addition, plaintiff

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does not describe the nature of the two appeals he allegedly lost – that is, whether they were

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direct criminal appeals, constitutional challenges to his conditions of confinement, family law

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matters, or some other type of proceeding.

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In order to state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal

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constitutional or statutory right; and (2) that the violation was committed by a person acting under

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the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable
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for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S. Ct. 1937,

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1948 (2009). Because respondeat superior liability is inapplicable to § 1983 suits, “a plaintiff

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must plead that each Government-official defendant, through the official’s own individual

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actions, has violated the Constitution.” Id. It is plaintiff’s responsibility to allege facts to state a

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plausible claim for relief. Iqbal, 129 S. Ct. at 1949; Moss v. U.S. Secret Serv., 572 F.3d 962, 969

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(9th Cir. 2009).

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Prisoners have a First Amendment right to send and receive mail. See Witherow v. Paff,

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52 F.3d 264, 265 (9th Cir. 1995) (per curiam). However, an isolated incident of mail interference

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or tampering is usually insufficient to establish a constitutional violation. Davis v. Goord, 320

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F.3d 346, 351 (2d Cir. 2003); see also Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999)

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(temporary delay or isolated incident of delay of mail does not violate a prisoner’s First

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Amendment rights); Witherow, 52 F.3d at 266 (9th Cir. 1995) (First Amendment not violated

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where prison’s mail regulation related to a legitimate penological interest).

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Prisoners have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S.

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817, 828 (1977). Prisoners also have a right “to litigate claims challenging their sentences or the

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conditions of their confinement to conclusion without active interference by prison officials.”

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Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011). An inmate alleging a violation of this

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right must show that he suffered an actual injury. Lewis v. Casey, 518 U.S. 343, 349-51 (1996).

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That is, plaintiff must allege that the deprivation actually injured his litigation efforts, in that the

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defendant hindered his efforts to bring, or caused him to lose, an actionable claim challenging his

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criminal sentence or conditions of confinement. See id. at 351; Christopher v. Harbury, 536 U.S.

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403, 412-15 (2002).

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The complaint also names Doe defendants. The use of Doe defendants in federal court is

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problematic, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), and ultimately

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unnecessary. Rather, the Federal Rules of Civil Procedure prescribe the process plaintiff must

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follow if he wishes to add as defendants subsequently identified individuals. Should plaintiff

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learn the identities of parties he wishes to serve, he must promptly move pursuant to Rule 15 of

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the Federal Rules of Civil Procedure to file an amended complaint to add them as defendants.
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See Brass v. County of Los Angeles, 328 F.3d 1192, 1197-98 (9th Cir. 2003). If the timing of his

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amended complaint raises questions as to the statute of limitations, plaintiff must satisfy the

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requirements of Rule 15(c), which is the controlling procedure for adding defendants whose

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identities were discovered after commencement of the action. Additionally, unknown persons

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cannot be served with process until they are identified by their real names and the court will not

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investigate the names and identities of unnamed defendants.

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Plaintiff will be granted leave to file an amended complaint, if plaintiff can allege a

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cognizable legal theory against a proper defendant and sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly set forth the claims and allegations against each defendant. Any amended complaint

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must cure the deficiencies identified above and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.

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V.

Conclusion

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Accordingly, the court hereby orders that:

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

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2. Plaintiff’s request for appointment of counsel (ECF No. 8) is denied.

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3. The complaint is dismissed with leave to amend within 30 days. The amended

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complaint must bear the docket number assigned to this case and be titled “First Amended

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Complaint.” Failure to comply with this order will result in this action being dismissed for failure

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to state a claim. If plaintiff files an amended complaint stating a cognizable claim the court will

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proceed with service of process by the United States Marshal.

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Dated: November 5, 2013.

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