Dahl v. Virga, et al.

Filing 16

ORDER signed by Magistrate Judge Allison Claire on 04/21/15 ORDERING that plaintiff's First Amended Complaint is DISMISSED with leave to file a Second Amended Complaint within 30 days; plaintiff's 14 Motion to Appoint Counsel is DENIED without prejudice. (Benson, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT EDWARD DAHL, JR., 12 Plaintiff, 13 14 No. 2:14-cv-0949 AC P v. ORDER TIMOTHY VIRGA, et al., 15 Defendants. 16 17 I. Introduction Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed 18 19 pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned 20 Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c), and Local Rule 305(a). See 21 ECF No. 4. By order filed September 19, 2014, plaintiff’s original complaint was dismissed with 22 leave to file a First Amended Complaint (FAC). After two extensions of time, plaintiff filed his 23 FAC on January 5, 2015, ECF No. 15, together with a request for appointment of counsel, ECF 24 No. 14. For the reasons that follow, plaintiff’s FAC is dismissed with leave to file a Second 25 Amended Complaint (SAC), and plaintiff’s request for appointment of counsel is denied without 26 prejudice. 27 //// 28 //// 1 1 2 II. Screening of FAC and Leave to File a SAC The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 4 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 5 that are legally “frivolous or malicious,”fail to state a claim upon which relief may be granted, or 6 seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A 7 (b)(1) & (2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989); Franklin, 745 F.2d at 1227. 15 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 16 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 17 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 18 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 19 However, in order to survive dismissal for failure to state a claim a complaint must contain more 20 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 21 allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 127 S. 22 Ct. at 1965. In reviewing a complaint under this standard, the court must accept as true the 23 allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 24 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and 25 resolve all doubts in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 26 In dismissing plaintiff’s original complaint, the court informed plaintiff, among other 27 things, of the elements for stating a Fourteenth Amendment due process claim based on the 28 confiscation or deprivation of his personal property. The court noted: 2 1 The United States Supreme Court has held that “an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, where the state provides a meaningful postdeprivation remedy, only authorized, intentional deprivations constitute actionable violations of the Due Process Clause. An authorized deprivation is one carried out pursuant to established state procedures, regulations, or statutes. Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). 2 3 4 5 6 7 8 ECF No. 6 at 5-6. Pursuant to these standards, the court noted the following deficiencies in 9 plaintiff’s original complaint: 10 In the instant case, plaintiff has not alleged any facts which suggest that any deprivation of his legal materials was authorized. Plaintiff does not identify his missing property or explain the circumstances of its loss. He does not explain who was responsible, or whether the removal was intentional or the loss negligent. What little information plaintiff provides suggests that its loss was unauthorized. The complaint is therefore dismissed, but plaintiff is granted leave to amend. 11 12 13 14 15 16 Id. Plaintiff clarifies matters in his FAC, although not sufficiently. Plaintiff now alleges that, 17 on January 26, 2012, when defendant Correctional Sergeant Pennisi moved plaintiff from A 18 Facility at Salinas Valley State Prison (SVSP), “they packed my stuff[.] I had my property such 19 as my TV and some other stuff such as a cable and to this day it is still missing.” ECF No. 15 at 20 3. Plaintiff further alleges that thereafter, when plaintiff was moved to SVSP’s D-1 Building, 21 defendant D-1-2 Property Officer “Prewitt lost some more of my stuff from my transcripts to my 22 Department Operation Manuel (sic) and case laws that I had. I also had cards, envelopes and 23 other stuff come up missing. . . .” Id. Plaintiff states that he wrote administrators and filed 24 “another 602 [that] was granted for some of the other stuff lost throughout trips to crisis beds to 25 prisons[,]” but “I cannot find anyone to answer for the lose [sic] of my TV my transcripts to a 26 D.O.M. and other small stuff. Both Officer’s . . . failed to protect my property.” Id. at 4. 27 Plaintiff seeks the following relief: “I would like the courts help in getting my property replaced 28 by CDCR and or found. I need my books, TV, DOM and Cable as well as greeting cards to 3 1 2 envelopes replaced or found.” Id. at 3. Ambiguities remain in the FAC. Plaintiff will be accorded one last opportunity to file an 3 amended complaint in order to clarify these matters. Plaintiff is informed of the following 4 additional legal considerations: 5 6 7 8 9 10 11 12 13 14 15 Under the Supreme Court’s rulings in Parratt [v. Taylor, 451 U.S. 527 (1981), overruled on other grounds by Daniel v. Williams, 474 U.S. 327 (1986)] and Hudson [v. Palmer, 468 U.S. 517 (1984)], a negligent or unauthorized, intentional deprivation of property does not give rise to a due process claim so long as the state provides an adequate post-deprivation remedy, such as the availability of a common-law state tort action against a private prison employee. Parratt, 451 U.S. at 537-38; Hudson, 468 U .S. at 533. The reasoning behind this rule is that a state cannot provide a predeprivation hearing for a property loss that the state cannot predict. Hudson, 468 U.S. at 532-33. On the other hand, if the deprivation of property is carried out pursuant to an established state procedure or regulation, then the plaintiff can state a claim under the Due Process Clause. See id.; Quick [v. Jones, 754 F.2d 1521 (9th Cir. 1974) at 1523-24. In these cases, authorized property deprivations are permissible if conducted pursuant to a regulation that is reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 89 (1987). Philippi v. Skolnik, 2013 WL 5372352, *9 (D. Nev. 2013). 16 These standards define the necessary scope of plaintiff’s allegations in a further amended 17 complaint, in which plaintiff must answer the following questions as to each piece of property he 18 asserts he is missing – when, where, who, what and how. Specifically, according to his best 19 recollection, plaintiff must allege that on a specific date, at a specific place, a specific defendant 20 confiscated plaintiff’s specifically identified property, according to a specific method. The last 21 question has two components: (1) was the method of confiscation “formal” (pursuant to an 22 established prison procedure, generally including a list of the confiscated property), or “informal” 23 (ad hoc, pursuant to no established procedure or record); and (2) was the method of confiscation 24 “intentional” (deliberate), or “unintentional” (accidental)? Plaintiff needs to answer each of these 25 questions for each piece of property; if several pieces of property share the same facts, then their 26 confiscation may be addressed together. 27 One additional matter requires further amendment of the complaint. Plaintiff concedes 28 that he has not exhausted his administrative remedies. See ECF No. 15 at 2 (plaintiff answered 4 1 “No” to the question, “Is the grievance process completed?”).1 The Prison Litigation Reform Act 2 (PLRA) requires prisoners to exhaust “such administrative remedies as are available” before 3 commencing a suit challenging prison conditions. 42 U.S.C. § 1997e(a). Regardless of the relief 4 sought, a prisoner must pursue a remedy through all levels of the prison’s grievance process “as 5 long as some action can be ordered in response to the complaint.” Brown v. Valoff, 422 F.3d 6 926, 934 (9th Cir. 2005) (original emphasis) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). 7 “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural 8 rules because no adjudicative system can function effectively without imposing some orderly 9 structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-1 (2006) (fn. 10 omitted). 11 On the other hand, the PLRA does not require exhaustion “when circumstances render 12 administrative remedies ‘effectively unavailable.’” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 13 2010) (citation omitted). However, courts in the Ninth Circuit require “a good-faith effort on the 14 part of inmates to exhaust a prison’s administrative remedies as a prerequisite to finding remedies 15 effectively unavailable.” Albino v. Baca, 697 F.3d 1023, 1035 (9th Cir. 2012); see also Sapp, 623 16 F.3d at 823-24 (to fall within an exception to the exhaustion requirement, “a prisoner must show 17 that he attempted to exhaust his administrative remedies but was thwarted”). 18 In the present case, in which plaintiff concedes that he has not exhausted his 19 administrative remedies, if plaintiff is able to state a cognizable legal claim in a SAC, he may 20 proceed in this action only if he also demonstrates that his administrative remedies were 21 effectively unavailable. 22 If plaintiff chooses to file a SAC, he must demonstrate how the conditions complained of 23 resulted in a deprivation of his federal constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 24 (9th Cir. 1980). The SAC must allege in specific terms how each defendant was involved in the 25 alleged deprivation of plaintiff’s rights. There can be no liability under 42 U.S.C. § 1983 unless 26 there is some affirmative link or connection between a defendant’s challenged conduct and the 27 28 1 In response to the question whether plaintiff filed a grievance, he states “Yes” and explains, “I’m pretty sure I did but I don’t recall what I short the courts at the time.” ECF No. 15 at 2. 5 1 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 2 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory 3 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 4 Regents, 673 F.2d 266, 268 (9th Cir. 1982). Local Rule 220 requires that the SAC be complete in 5 itself without reference to any prior pleading. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). 6 III. Request for Appointment of Counsel 7 Finally, plaintiff requests appointment of counsel. ECF No. 14. Like most other 8 prisoners, plaintiff states that he is indigent and unlearned in the law. He also states that he has a 9 limited education and understanding of the court’s orders, and requires assistance in preparing 10 legal documents “do (sic) to mental problems” and ADHD. Id. at 1-2. 11 Plaintiff is informed that district courts do not have authority to require attorneys to 12 represent indigent prisoners in Section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 13 296, 298 (1989). In certain “exceptional circumstances,” the district court may request the 14 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 15 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 16 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 17 likelihood of success on the merits as well as his ability to articulate his claims pro se in light of 18 the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 19 The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 20 common to most prisoners, such as lack of legal education and limited law library access, do not 21 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 22 In the present case, the court does not find the required exceptional circumstances at this 23 preliminary stage. The legal issues presented by this case are limited and well established, and 24 their merit will depend on plaintiff’s careful presentation of the facts, as instructed herein, and 25 whether plaintiff can demonstrate the unavailability of his administrative remedies. 26 IV. Conclusion 27 Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that: 28 1. Plaintiff’s FAC is dismissed with leave to file a SAC within thirty days after the filing 6 1 date of this order. The SAC must bear the docket number assigned to this case and be labeled 2 “Second Amended Complaint.” Failure to timely file a SAC in accordance with this order will 3 result in a recommendation that this action be dismissed without prejudice. 4 2. Plaintiff’s motion for appointment of counsel, ECF No. 14, is denied without 5 prejudice. 6 DATED: April 21, 2015 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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