Rodriguez v. Beard et al

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 6/10/2014 GRANTING plaintiff's 3 request to proceed IFP; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order; plaintiff's complaint is DISMISSED; within 30 days, plaintiff shall complete and return the Notice of Amendment with the required documents ; plaintiff's 6 motion for appoint of counsel is DENIED; and plaintiff's 7 motion to amend is DENIED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEAN C. RODRIGUEZ,

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No. 2: 14-cv-1049 KJN P

Plaintiff,
v.

ORDER

JEFFREY BEARD, et al.,

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Defendants.

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Introduction
Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to

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42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.
§ 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.

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28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing

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fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will

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direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account

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and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

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§ 1915(b)(2).

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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 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 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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“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.”); Franklin, 745 F.2d at

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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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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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

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sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

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However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.
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Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal

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quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

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true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

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pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236(1974),

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overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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Plaintiff’s Complaint

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Named as defendants are Jeffrey Beard, Matthew Cate, Mike McDonald, Fred Foulk, R.

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St. Andre, D. Peddicord, W. Wilson, Kraft, Flaherty and Shelly Matis. Plaintiff’s complaint

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contains four claims for relief. First, plaintiff alleges that he was denied his right to access the

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courts due to an inadequate law library as well as inadequate law library access. Second, plaintiff

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alleges that he was retaliated against after he complained about the inadequate law library. Third,

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plaintiff alleges that he was subjected to race based lockdowns. Fourth, plaintiff alleges a claim

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for intentional infliction of emotional distress in violation of state law.

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Alleged Denial of Access to the Courts

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Plaintiff alleges that he was housed at High Desert State Prison (“HDSP”) from March

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2011 to March 2014. On October 28, 2010, plaintiff filed a habeas corpus petition in the United

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States District Court for the Central District of California challenging his criminal conviction.

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Plaintiff alleges that he could not prepare an adequate supplemental traverse to respondent’s

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answer to his petition because the HDSP law library was inadequate. Plaintiff alleges that he

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could not access several federal reporter cases as well as updated Supreme Court cases. Plaintiff

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alleges that respondent’s 59 page response to his petition cited over 65 cases, over 24 of which

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were not available in the law library. Plaintiff also claims that he sought access to Shepards, but

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he does not indicate whether he obtained this access. Plaintiff also alleges that he did not receive

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adequate time in the law library to prepare his supplemental traverse. Plaintiff alleges that his

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supplemental traverse was 174 pages long.

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Plaintiff alleges that on March 29, 2012, the Magistrate Judge recommended that his

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petition be denied. On June 12, 2012, the Magistrate Judge issued an amended findings and

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recommendation, again recommending that plaintiff’s petition be denied. Plaintiff alleges that the
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findings and recommendations cited cases that were not available in the law library. Plaintiff did

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not receive the amended findings and recommendations. On June 26, 2012, the district court

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adopted the amended findings and recommendations.

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After receiving the judgment from the district court, plaintiff alleges that he attempted to

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prepare a request for a certificate of appealability. On July 25, 2012, plaintiff filed a notice of

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appeal. On July 25, 2013, the Ninth Circuit Court of Appeals denied plaintiff’s request for a

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certificate of appealability. Because plaintiff had fourteen days to file a motion for

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reconsideration with the Ninth Circuit and ninety days from that date to file a petition for writ of

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certiorari with the Supreme Court, he immediately submitted a request for law library access as a

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preferred legal user (“PLU”).
Plaintiff alleges that he later heard two law librarians talking about getting new computers

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for the library because the hard drives of the old computers were difficult to update. On January

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14, 2014, plaintiff attended the law library and saw that new computers had been installed. The

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new computers contained unpublished and published cases, Shepards and up-to-date decisions.

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Plaintiff finished preparing his petition for a writ of certiorari. Plaintiff alleges that having

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reviewed the previously unavailable new case law, he realized that his grounds for challenging his

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conviction were meritorious. On March 24, 2014, the Supreme Court denied plaintiff’s request

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for a petition for writ of certiorari without comment or citation.

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Prisoners “have a constitutional right to petition the government for redress of their

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grievances, which includes a reasonable right of access to the courts.” O’Keefe v. Van Boening,

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82 F.3d 322, 325 (9th Cir. 1996). In Bounds v. Smith, 430 U.S. 817 (9th Cir. 1977), the Supreme

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Court held that “the fundamental constitutional right of access to the courts requires prison

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authorities to assist inmates in the preparation and filing of meaningful legal papers by providing

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prisoners with adequate law libraries or adequate assistance from persons who are trained in the

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law.” Bounds v. Smith, 430 U.S. at 828. To establish a violation of the right to access to the

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courts, however, a prisoner must allege facts sufficient to show that: (1) a nonfrivolous legal

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attack on his conviction, sentence, or conditions of confinement has been frustrated or impeded,

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and (2) he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S. 343, 353–55 (1996).
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An “actual injury” is defined as “actual prejudice with respect to contemplated or existing

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litigation, such as the inability to meet a filing deadline or to present a claim.” Id. at 348.

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Law libraries and legal assistance programs are only means of ensuring access to the

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courts. Id. at 351. Because inmates do not have “an abstract, freestanding right to a law library

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or legal assistance, an inmate cannot establish relevant actual injury by establishing that his

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prison’s law library or legal assistance program is subpar in some theoretical sense.” Id. The

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inmate must demonstrate that the alleged shortcomings in the law library or legal assistance

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program hindered his efforts to pursue a legal claim. Id. He might show, for example, that a

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complaint he prepared was dismissed for failure to satisfy some technical requirement which,

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because of deficiencies in the prison’s legal assistance facilities, he could not have known. Id.

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He might also show that he had suffered arguably actionable harm that he wished to bring before

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the courts, but was so stymied by inadequacies of the law library that he was unable even to file a

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complaint. Id.

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Plaintiff alleges that he could not prepare an adequate supplemental traverse, objections,

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request for certificate of appealability and request for reconsideration because the law library was

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inadequate. Plaintiff alleges that once the law library received new computers, he discovered

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case law demonstrating that his claims had merit. Plaintiff suggests that had he had access to

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these cases, the District Court and Ninth Circuit would have granted his habeas corpus petition.

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For the following reasons, the undersigned finds that plaintiff has not stated a colorable

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claim challenging the adequacy of the law library. First, plaintiff has not demonstrated that he

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suffered an actual injury in that was unable to pursue a legal claim due to the allegedly inadequate

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law library. In other words, the alleged inadequacies of the law library did not prevent plaintiff

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from filing his pleadings. The record reflects that plaintiff was able to litigate his federal habeas

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petition all the way to the Supreme Court, which included filing a 174 page supplemental traverse

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filed in the district court.

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While plaintiff alleges that he discovered that his claims had merit only after he had

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access to the new computers, the undersigned observes that the Supreme Court denied his petition

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for a writ of certiorari which contained these new cases. Moreover, plaintiff had adequate law
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library access when he filed his initial petition in the Central District before his transfer to HDSP.

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Plaintiff does not address why he was unable to discover the cases he now claims he discovered

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only after HDSP updated its computers even though he had adequate law library access when he

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filed his initial petition. For these reasons, the undersigned finds that plaintiff has not

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demonstrated that he suffered an actual injury because of the alleged inadequacies of the HDSP

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law library.

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Plaintiff also alleges that he did not have adequate physical access to the law library in

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order to prepare his supplemental traverse, objections, request for certificate of appealability and

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motion for reconsideration. Plaintiff does not specifically allege how inadequate physical access

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to the law library hindered his ability to prepare his 174 page supplemental traverse, objections,

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request for a certificate of appealability and motion for reconsideration. For these reasons, the

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undersigned finds that plaintiff has not demonstrated that he suffered an actual injury as a result

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of allegedly inadequate access to the law library.
For the reasons discussed above, plaintiff’s claims alleging denial of access to the courts

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are dismissed with leave to amend.

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Retaliation

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Plaintiff alleges that he was retaliated against for filing grievances regarding the

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inadequate law library and for complaining after he discovered the real reason the computers in

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the law library were inadequate. Plaintiff alleges that on April 4, 2011, he filed his first grievance

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challenging the adequacy of the law library. On April 13, 2011, defendant Flaherty responded to

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this grievance. On June 17, 2011, defendant Kraft filed a response to plaintiff’s second level

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grievance. On October 11, 2011, plaintiff’s third level grievance was denied. On October 15,

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2011, plaintiff complained to defendants Flaherty and Kraft about the allegedly inadequate law

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library.

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Plaintiff alleges that on May 18, 2012, he was assigned the library clerk position at the
law library.

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Plaintiff alleges that on March 9, 2013, he discovered that the computers in the law library

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were inadequate due to a problem with the hard drives. Plaintiff alleges that up until that time, he
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had been told that the reason the computers could not be updated was due to a problem with West

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Group, the company responsible for the updates.

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Plaintiff alleges that on April 11, 2013, defendant Matis began supervising plaintiff in his

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position as library clerk. Defendant Matis was a new librarian. On April 24, 2013, defendant

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Matis fired plaintiff for helping inmate Leon. To justify the firing, defendant Matis later falsely

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stated that plaintiff had refused to work on six days.

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Correctional Officer Gill later told plaintiff that he was fired for inappropriately speaking
to a teacher, Mr. B., through the glass partition in the law library.

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Plaintiff later filed an administrative grievance challenging his firing. Plaintiff alleged

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that defendant Matis had wrongfully terminated him from his job. Plaintiff alleged that defendant

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Matis lied on plaintiff’s time card because plaintiff exercised his First Amendment rights.

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Plaintiff also alleged that defendant Matis retaliated against him by not giving him law library

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access.

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Plaintiff alleges that on April 25, 2013, and April 30, 2013, he submitted requests for law

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library access. On June 8, 2013, plaintiff was called to the law library for the first time since his

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firing. On June 8, 2013, plaintiff filed another request for law library access. Plaintiff attended

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the law library on August 8, 2013.

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Allegations of retaliation against a prisoner’s First Amendment rights to speech or to

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petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090,

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1104 (9th Cir. 2011). “Within the prison context, a viable claim of First Amendment retaliation

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entails five basic elements: (1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005).

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Plaintiff has not plead sufficient facts demonstrating that he was fired from his job and

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denied law library access because he complained about the inadequate law library. Plaintiff’s

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grievances regarding the law library were addressed in 2011. Plaintiff has not plead sufficient

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facts demonstrating that defendant Matis, who fired him from his job in 2013, had knowledge of
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these grievances or was otherwise motivated to retaliate against plaintiff for filing them.

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Plaintiff also alleges that he was fired from his job after he discovered the “real” reason

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the law library computers were inadequate. However, plaintiff does not allege that he filed any

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grievance regarding this discovery or otherwise complained to any prison official, including

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defendant Matis, regarding this issue. For these reasons, the undersigned finds that plaintiff has

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not plead sufficient facts demonstrating that he was fired from his job and denied law library

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access because he complained about the “real” reason the law library computers were inadequate.

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Accordingly, this claim is dismissed with leave to amend.

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Plaintiff may be claiming that he was fired from his job and denied law library access by

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defendant Matis in retaliation for his assisting inmate Leon. However, the complaint does not

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clearly allege this theory. If plaintiff intends to proceed on this theory of retaliation, it must be

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clearly set forth in the amended complaint.

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Race Based Lockdowns

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Plaintiff alleges that he is classified as a southern Hispanic. Plaintiff alleges that when he

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was transferred to HDSP on March 2, 2011, he was housed in Facility C, building 5, which had

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been on lockdown since June 10, 2010. On November 9, 2012, plaintiff was informed that all

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Hispanic inmates were placed on lockdown because two southern Hispanic inmates attempted to

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murder another inmate. Plaintiff alleges that this incident did not happen in Facility C and that he

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had nothing to do with this incident. This lockdown lasted until March 2013.

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Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment

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from invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539, 55 (1974)

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(citation omitted). A prison classification based on race is “immediately suspect” and is subject

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to strict scrutiny. Johnson v. California, 543 U.S. 499, 505–06 (2005). Like race, ethnicity and

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national origin are suspect classifications. Id. at 503 (holding that California’s policy of

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temporarily segregating new inmates or transferees by race, ethnicity, and national origin for up

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to 60 days was an “express racial classification” triggering strict scrutiny). Strict scrutiny is

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required “in order to smoke out illegitimate uses of race by assuring that government is pursuing

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a goal important enough to warrant such a highly suspect tool.” Id. at 506 (internal quotation
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marks and alteration omitted).
Under Johnson, strict scrutiny means that the government must show that “reasonable men

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and women could not differ regarding the necessity of a racial classification in response to prison

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disturbances and that the racial classification was the least restrictive alternative (i.e., that any

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race-based policies are narrowly tailored to legitimate prison goals).” Richardson v. Runnels, 594

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F.3d 666, 671 (9th Cir. 2010) (as amended) (reversing summary judgment in favor of the

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defendant prison officials on an African–American inmate's equal protection claim alleging that

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assaults “that were believed to be perpetrated or planned by prisoners who were African–

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American led to the lockdown of all African–American inmates in a particular unit of the prison,”

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where there was an absence of evidence showing a link other than race between the perpetrators

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and the other prisoners placed on lockdown, and therefore the defendants “made no evidentiary

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showing at all concerning the basis for regarding all African–Americans as a security risk when

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one or a few African–American inmates are responsible for an assault”). Prison classifications

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that burden fundamental rights but are not based on race generally pass constitutional muster if

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they are “reasonably related” to “legitimate penological interests.” See Johnson, 543 U.S. at 509–

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Plaintiff’s claim alleging improper race based lockdowns in dismissed with leave to

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amend so that plaintiff may clarify the time period during which he was allegedly subject to race

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based lockdown. It is not clear if plaintiff is alleging that he was subject to a race based

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lockdown from the time he arrived at HDSP in March 2011 until March 2013, or whether he is

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alleging that he was subject to a race based lockdown from November 2012 until March 2013.

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Intentional Infliction of Emotional Distress

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California’s Tort Claims Act requires that a tort claim against a public entity or its

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employees be presented to the California Victim Compensation and Government Claims Board,

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formerly known as the State Board of Control, no more than six months after the cause of action

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accrues. Cal. Gov't Code §§ 905.2, 910, 911.2, 945.4, 950–950.2. Presentation of a written

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claim, and action on or rejection of the claim, are conditions precedent to suit. State v. Superior

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Court of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1245 (2004); Mangold v. Cal. Pub. Utils.
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Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against a public employee, a

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plaintiff must allege compliance with the Tort Claims Act. State v. Superior Court, 32 Cal.4th at

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1245; Mangold, 67 F.3d at 1477; Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627

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(9th Cir. 1988).

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Plaintiff has not alleged compliance with the Tort Claims Act as to his state law claim for

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intentional infliction of emotional distress. Accordingly, this claim is dismissed with leave to

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amend.

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Conclusion

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For the reasons discussed above, plaintiff’s complaint is dismissed with leave to amend.

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Plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff’s

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

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in itself without reference to any prior pleading. This requirement exists because, as a general

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rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,

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57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer

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

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

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Plaintiff’s complaint is 36 pages long. Federal Rule of Civil Procedure 8(a) provides that

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a pleading shall contain a short and plain statement of the claims. It is clear that plaintiff can state

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his claims in a shorter complaint. Therefore, if plaintiff files an amended complaint, it may be no

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longer than 25 pages.

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On May 19, 2014, plaintiff filed a motion to amend his complaint to correct a

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typographical error. Because the complaint is dismissed with leave to amend, the motion to

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amend is denied as unnecessary.

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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 plaintiff’s

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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) (district court did not abuse discretion in declining to appoint counsel). The

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burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to
meet his burden of demonstrating exceptional circumstances warranting the appointment of
counsel at this time.

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

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

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the dismissal of

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this action.

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5. Plaintiff’s motion for appointment of counsel (ECF No. 6) is denied;

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6. Plaintiff’s motion to amend (ECF No. 7) is denied.

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Dated: June 10, 2014

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Ro1049.14

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEAN RODRIGUEZ,

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No. 2: 14-cv-1049 KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

JEFFREY BEARD, et al.,

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Defendants.

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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
_____________

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Amended Complaint

DATED:

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________________________________
Plaintiff