Bauer v. Macomber et al

Filing 9

ORDER signed by Magistrate Judge Allison Claire on 1/12/2015 GRANTING plaintiff's 4 application to proceed IFP; plaintiff's 5 second application for the same relief is DENIED as moot; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order; plaintiff's complaint is DISMISSED with leave to amend within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL RAYMOND BAUER,

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Plaintiff,

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No. 2:14-cv-2028 AC P

v.

ORDER

JEFF MACOMBER, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has consented to the jurisdiction of the magistrate judge. ECF No. 6.
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

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§ 1915(a). ECF No. 4. Accordingly, the request to proceed in forma pauperis will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

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§§ 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect

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twenty percent of the preceding month’s income credited to plaintiff’s prison trust account and

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forward it to the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00,

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until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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I. SCREENING REQUIREMENT & LEGAL STANDARDS
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. Legal Standards
1. Screening Standard

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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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A complaint must contain more than a “formulaic recitation of the elements of a cause of

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action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). It is insufficient

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for the pleading to contain a statement of facts that “merely creates a suspicion” that the pleader

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might have a legally cognizable right of action. Id. (quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure § 1216, pp. 235-35 (3d ed.2004)). Rather, the complaint “must contain

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sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id.

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In reviewing a complaint under this standard, the court “must accept as true all of the

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factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing

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Twombly, 550 U.S. at 555 56), construe those allegations in the light most favorable to the
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plaintiff, Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.

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2010) (citing Twombly, 550 U.S. 544), cert. denied, 131 S. Ct. 3055 (2011), and resolve all

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doubts in the plaintiff's favor. Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010) (citing Hospital

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Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738 (1976)).

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2. Section 1983
To state a claim under 42 U.S.C. § 1983, the plaintiff must allege facts which, if true,

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would show: “(1) that a right [of plaintiff’s] secured by the Constitution or laws of the United

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States was violated; and (2) that the alleged violation was committed by a person acting under

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color of state law.” Campbell v. State of Washington Dept. of Social and Health Services, 671

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F.3d 837, 842 n.5 (9th Cir. 2011), cert. denied, 133 S. Ct. 275 (2012); Padilla v. Lynch, 398 F.2d

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481, 482 (9th Cir. 1968). Further, plaintiff must allege that he suffered a specific injury as a

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result of specific conduct of a defendant and show an affirmative link between the injury and the

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conduct of that defendant. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir.

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1984) (“plaintiff must allege with at least some degree of particularity overt acts which

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defendants engaged in that support the plaintiff's claim”) (internal quotation marks omitted).

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A key consideration applicable to this complaint is that the federal rules contemplate

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brevity. See Fed. R. Civ. P. 8(a)(2) (complaint must be “a short and plain statement”);

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Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a

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simplified pleading system, which was adopted to focus litigation on the merits of a claim”).

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Plaintiff’s claims must be set forth simply, concisely and directly. Fed. R. Civ. P. 8(d) (1)

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(“[e]ach allegation must be simple, concise and direct”); McHenry v. Renne, 84 F.3d 1172, 1177

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(9th Cir. 1996) (“[t]he Federal Rules require that averments ‘be simple, concise, and direct’”); see

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Crawford-El v. Britton, 523 U.S. 574, 597 (1998) (reiterating that “firm application of the Federal

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Rules of Civil Procedure is fully warranted” in prisoner cases).

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The courts do grant leeway to pro se plaintiffs in construing their pleadings. See, e.g.,

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Brazil v. U.S. Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995) (“[a]lthough a pro se litigant …

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may be entitled to great leeway when the court construes his pleadings, those pleadings

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nonetheless must meet some minimum threshold in providing a defendant with notice of what it is
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that it allegedly did wrong”). Even with leeway and liberal construction, however, the complaint

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must not force the court and the defendants to guess at what is being alleged against whom,

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require the court to spend its time “preparing the ‘short and plain statement’ which Rule 8

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obligated plaintiffs to submit,” or require the court and defendants to prepare lengthy outlines “to

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determine who is being sued for what.” McHenry, 84 F.3d at 1179. An excessively long and

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repetitive pleading, containing much narrative and story-telling, naming many defendants and

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other named individuals who may or may not be defendants, and with no clear statement of which

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individuals did what, very likely will result in delaying the review required by 28 U.S.C. § 1915A

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and ultimately, an order dismissing plaintiff’s action pursuant to Fed. R. Civ. P. 41, for violation

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of these instructions. Id.
3. Right of Access to the Courts
“[T]he fundamental constitutional right of access to the courts requires prison authorities

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

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with adequate law libraries or adequate assistance from persons trained in the law.” Bounds v.

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Smith, 430 U.S. 817, 828 (1977)); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009) (same).

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The right of access to the courts, however, is limited to non-frivolous direct criminal appeals,

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habeas corpus proceedings, and § 1983 actions. Lewis v. Casey, 518 U.S. 343, 354-55 (1996);

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Dahl v. Virga, 2014 WL 4678319, at * 3 (E.D. Cal. 2014) (Claire, M.J.).

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In order to frame a claim of a denial of the right to access the courts, a prisoner must

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allege facts showing that he has suffered “actual injury,” a jurisdictional requirement derived

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from the standing doctrine. Lewis, 518 U.S. at 349. An “actual injury” is “actual prejudice with

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

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present a claim.” Lewis, 518 U.S. at 348 (citation and internal quotations omitted); see also

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Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir.2008) (noting that “[f]ailure to show that a

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‘non-frivolous legal claim had been frustrated’ is fatal” to a claim for denial of access to legal

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materials) (quoting Lewis, 518 U.S. at 353 & 353 n.4).

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The provision of an adequate law library (or legal assistance) is not an end in itself, “but

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only the means for ensuring ‘a reasonably adequate opportunity to present claimed violations of
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fundamental constitutional rights to the courts.’” Lewis, 518 U.S. at 351 (quoting Bounds, 430

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U.S. at 825). Indeed, there is no “abstract, freestanding right to a law library or legal assistance.”

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Id., at 351. Therefore, a prisoner’s complaint will not survive screening if it simply alleges facts

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showing “that his prison’s law library or legal assistance program is subpar in some theoretical

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sense.” Id.

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B. The Complaint

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Plaintiff’s sixteen page narrative alleges that he was denied his right of access to the

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courts because of various deficiencies in the prison law library, its staff, and impaired access to

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that library. The complaint alleges the following conduct in 2012: (1) defendants A. Nappi, D.

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Hamad, K. Blessing and D. Hobard did not allow sufficient “physical access” to the law library

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(ECF No. 1 at 4 & 14); (2) defendants A. Nappi, D. Hamad, K. Blessing and Timothy Virga

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improperly processed (or supervised) inmates’ “paging” requests, and sent the wrong materials

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from the library to inmates (id., at 5 & 14); (3) defendant Nappi failed to provide the correct

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forms plaintiff needed “to file a valid court action” (id., at 5-6); (4) defendants SA Casto, D.

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Hamad and K. Blessing “allow[ed] library clerks to send me materials by page number and not by

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section number as I have requested” (id., at 6); (5) defendants J.R. Bradford, Hamad, K. Blessing

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and Timothy Virga, would not allow plaintiff “to obtain up to 50 pages of documents” which

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plaintiff apparently needs “to commence a legal action” to challenge “the conditions of my

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confinement in state court” (id., at 7-8).

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Moving on to conduct occurring in 2013, the complaint alleges: (6) defendant Nappi

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denied plaintiff’s “Priority Library User request,” and Butcher allowed Nappi “to review his own

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denial of my Priority Library User request.” Plaintiff made the request because he was seeking an

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“extension” from the California Supreme Court (id., at 8-9); (7) Nappi lied about having the

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current edition of the California codes, and in fact, the law library does not have the current

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edition. Moreover, Nappi and Hamad refused to provide plaintiff the current edition available

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from “the Electronic Law Library Delivery system,” leaving him “to rely on the 1984 or 1985

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edition of West’s annotated California Codes and their annual cumulative pocket parts.” This

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prevented plaintiff from conducting “adequate research to challenge the conditions of my
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confinement or my conviction” (id., at 9-10); (8) defendants D. Hamad, A. Nappi and J.R.

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Bradford granted plaintiff physical access to the law library only on Thursdays, or possibly, only

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once per month (the complaint seems to allege both) (id., at 12-13).

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C. Analysis
1. Short and plain statement

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The court first notes that while plaintiff’s complaint is “plain” enough to be understood, it

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is not “short and plain,” as required by Fed. R. Civ. P. 8(a)(2). The complaint alleges a great deal

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of material that is not required to state a claim for relief. For example, the complaint goes into

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some detail about what could or should be done to bring the library and its staff up to snuff. To

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state a claim, plaintiff need only state what conduct defendants engaged in and how it violates his

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rights. The complaint need not give a detailed narrative of all the ways the law library could be

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improved, how the staff could be better trained, and who said what to whom about how

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improvements could be made.

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2. Failure to state a claim for denial of access to the courts
Plaintiff’s entire lawsuit is predicated upon his complaints about the various deficiencies

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in the prison law library. He complains that he does not have enough physical access, that the

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books are not properly updated, that he is not provided enough copies of forms, and so on.

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However, plaintiff’s right of access to the courts does not grant him a “freestanding” right to any

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of the things he complains about. Phillips v. Hust, 588 F.3d 652, 657 (9th Cir. 2009) (“Lewis

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made clear that the right at issue in a case such as this is not ‘an abstract, freestanding right to a

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law library or legal assistance’”). Rather, plaintiff alleges a proper claim for denial of his right of

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access to the courts only if he alleges facts that show that a particular deprivation caused him

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actual prejudice to a pending or contemplated non-frivolous claim. See Lewis, 518 U.S. at 348

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(“actual prejudice” required); see also Alvarez v. Hill, 518 F.3d at 1155 n.1 (“[f]ailure to show

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that a ‘non-frivolous legal claim had been frustrated’ is fatal” to a claim for denial of access to

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legal materials). That is because, despite plaintiff’s repeated reference to a “right to an adequate

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law library (see, e.g., ECf No. 1 at 6), in fact, “the right vindicated by Bounds is a right of

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‘meaningful access to the courts.’” Phillips, 588 F.3d at 657.
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Plaintiff’s complaint fails on this ground. The complaint makes clear that the prison law library

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and its staff do not meet plaintiff’s standards. But the inadequate books, and poor training and

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performance of the staff, are not enough to allege a constitutional violation unless those

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deficiencies cause plaintiff prejudice in a specific, pending or contemplated, non-frivolous claim.

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Plaintiff does make general reference to an unidentified California Supreme Court case.

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See ECF No. 1 at 8-9 (“if I file my Petition for review before the time the California Supreme

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Court’s time to file a Petition for Review on their own motion expires, the Chief Justice may

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relieve me from default”). Plaintiff also makes reference to his apparent desire to file a lawsuit

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challenging unspecified conditions of his confinement. See, e.g., ECF No. 1 at 10-11. However,

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there is no allegation in the complaint showing that there are any non-frivolous claims at issue.

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Plaintiff need not explain in tedious detail the merits of these claims, but he must allege enough

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facts about them to inform the court that a non-frivolous claim is at stake.

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Accordingly, plaintiff’s complaint will be dismissed with leave to amend. Plaintiff is

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cautioned that leave to amend does not give him license to simply tack on even more pages to an

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already over-long complaint. Rather, plaintiff is being granted leave to include a short and plain

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statement showing that he has non-frivolous claims, and how they were blocked or compromised

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by inadequate access to the law library, or by an inadequate library or staff.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how each

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named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is

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some affirmative link or connection between a defendant's actions and the claimed deprivation.

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Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). However, the complaint need not recount

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every single thing each defendant did. It suffices to recount the conduct that violated plaintiff’s

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rights. Furthermore, vague and conclusory allegations of official participation in civil rights

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violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to
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make plaintiff's amended complaint complete. The amended complaint must be complete in itself

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without reference to any prior pleading. E.D. Cal. R. 220. This is because, as a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any

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

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and the involvement of each defendant must be sufficiently alleged.

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II.

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For the reasons stated above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 4), is GRANTED.

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CONCLUSION

Plaintiff’s second application for the same relief (ECF No. 5), is DENIED as moot.
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 with leave to amend.

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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and

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two copies of the amended complaint; failure to file an amended complaint in accordance with

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this order will result in a recommendation that this action be dismissed.

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DATED: January 12, 2015

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