Delarm v. Bell et al

Filing 10

ORDER signed by Magistrate Judge Deborah Barnes on 03/17/17 granting 7 Motion to Proceed IFP. Plaintiff's first amended complaint 8 is dismissed. Plaintiff is granted 30 days from the date of service of this order to file an amended complaint. The clerk of the court is directed to send plaintiff a copy of the prisoner complaint form used in this district. (Plummer, M)

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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 MICHAEL DELARM, 12 No. 2:14-cv-2792 DB P Plaintiff, 13 v. 14 E. BELL, et al., 15 ORDER Defendant. 16 Plaintiff is a former state prisoner proceeding pro se with a civil rights action under 42 17 18 U.S.C. § 1983. Plaintiff’s application to proceed in forma pauperis and his first amended 19 complaint are before the court. Plaintiff alleges a violation of his right of access to the courts. 20 For the reasons set forth below, plaintiff’s application to proceed in forma pauperis will be 21 granted, plaintiff’s first amended complaint will be dismissed, and plaintiff will be given an 22 opportunity to file an amended complaint. IN FORMA PAUPERIS 23 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 24 25 Accordingly, the request to proceed in forma pauperis will be granted. 26 //// 27 //// 28 //// 1 1 SCREENING 2 I. Legal Standards 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 A district court must construe a pro se pleading liberally to determine if it states a 9 potentially cognizable claim. The court must explain to the plaintiff any deficiencies in his 10 complaint and accord plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 11 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, “[t]hreadbare recitals 12 of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 14 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic, 550 16 U.S. at 570). “While legal conclusions can provide the framework of a complaint, they must be 17 supported by factual allegations.” Id. at 679. Rule 8 of the Federal Rules of Civil Procedure 18 “requires only a short and plain statement of the claim showing that the pleader is entitled to 19 relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it 20 rests.” Bell Atlantic, 550 U.S. at 555 (citation and internal quotation and punctuation marks 21 omitted). 22 II. 23 At the time he filed his first amended complaint, plaintiff was an inmate at Avenal State 24 Prison (“ASP”). (First Amended Complaint (“FAC”) (ECF No. 8 at 7).) The events which are 25 the subject of plaintiff’s suit occurred while he was incarcerated at Mule Creek State Prison 26 (“MCSP”). Plaintiff identifies the following defendants: (1) E. Bell, Library Technical Assistant 27 on Facility C; (2) Joe A. Lizarraga, Acting Warden; (3) P. Vanni, Acting Chief Deputy Warden; 28 (4) Robert L. Davis, Associate Warden; (5) M. Elorza, Appeals Coordinator; (6) K.J. Allen, Third Allegations of the First Amended Complaint 2 1 Level Appeals Examiner at the Chief, Inmate Appeals Branch; (7) R.L. Briggs, Acting Chief of 2 the Chief, Inmate Appeals Branch; and (8) Does 1-5, MCSP employees. (Id. at 8.) 3 Plaintiff states that in March 2014 defendant Bell read his legal documents and, if she felt 4 some exhibits or documents were not relevant, refused plaintiff’s request to copy them. At that 5 time, plaintiff was making a tort claim to the Victim Compensation and Government Claims 6 Board. Bell refused to make copies of pages from the Department Operations Manual (“DOM”) 7 and from the California Code of Regulations. When plaintiff requested copies a second time, Bell 8 relented and allowed plaintiff to copy his claim, though Bell read the document before copying it. 9 (Id. at 9-10.) 10 Plaintiff filed an administrative appeal. Around that time, he was transferred to ASP. At the 11 first level of review, defendant Harris “admitted plaintiff had a right to copy pages from the DOM 12 and 15 CCR and requested ASP to produce the requested copies.” However, defendants Harris 13 and Elorza found that Bell’s conduct did not rise to the level of staff misconduct. Defendants 14 Harris and Davis upheld Elorza’s finding that Bell’s conduct in examining and reading plaintiff’s 15 legal documents did not amount to staff misconduct. They did, however, admit that plaintiff was 16 entitled to copies of the public records. (Id. at 11.) 17 Defendants Lizarraga and Vanni denied plaintiff’s appeal at the second level of review. They 18 found that Bell acted in good faith and that examining documents was required to determine 19 whether copies were necessary. Defendants Allen and Briggs denied plaintiff’s appeal at the third 20 level of review. (Id.) 21 Plaintiff alleges a violation of his First Amendment rights and raises state law claims of 22 negligence and violation of the California Public Records Act. 23 Plaintiff seeks compensatory damages and costs of suit. 24 III. 25 Plaintiff alleges Bell’s examination of his legal documents and refusal to copy exhibits to Does Plaintiff State Potentially Cognizable Claims? 26 those documents violated his First and/or Fourteenth Amendment rights. With respect to 27 plaintiff’s claim that Bell read his legal documents without his consent, plaintiff does not allege 28 that these documents were communications with his attorney. Therefore, he is not asserting a 3 1 violation of his Sixth Amendment right to counsel. It appears that plaintiff’s claims regarding 2 reading his legal materials and refusing to make copies are attempts to state claims for violations 3 violation of plaintiff’s right of access to the courts under the First and Fourteenth Amendments. 4 See Linnihan v. Foulk, No. 2:13-cv-2575 MCE AC P, 2014 WL 1922785, at *2 (E.D. Cal. May 5 14, 2014) (claim regarding prison’s refusal to provide photocopies alleges violation of the 6 plaintiff’s access to the courts), findings and recos. adopted, 2014 WL 3361976 (E.D. Cal. July 9, 7 2014); Nelson v. City of Los Angeles, No. CV 11-5407-PSG (JPR), 2015 WL 1931714, at *11 8 (C.D. Cal. Apr. 28, 2015). Prisoners “have a right, protected by the First Amendment right to 9 petition and the Fourteenth Amendment right to substantive due process, ‘to pursue legal redress 10 for claims that have a reasonable basis in law or fact.’” Silva v. Di Vittorio, 658 F.3d 1090, 11 1102–03 (9th Cir. 2011) (quoting Snyder v. Nolen, 380 F.3d 279 (7th Cir. 2004)), abrogated on 12 other grounds as stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). For the 13 reasons set forth below, the court finds plaintiff fails to state a potentially cognizable federal 14 claim. Because plaintiff has not yet stated a cognizable federal claim, the court need not at this 15 point determine the viability of plaintiff’s state law claims. See Herman Family Revocable Trust 16 v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001) (if no cognizable federal claim, court will not 17 exercise supplemental jurisdiction over state law claim); 28 U.S.C. 1367(c)(3). 18 A. Legal Standards 19 The First Amendment right to petition the government includes a right of access to the 20 courts. See Cal. Motor Transp. Co. v. Trucking Unltd., 404 U.S. 508, 510 (1972). Prisoners have 21 a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 828 (1977). 22 Prisoners also have a right “to litigate claims challenging their sentences or the conditions of their 23 confinement to conclusion without active interference by prison officials.” Silva, 658 F.3d at 24 1103. 25 An inmate alleging a violation of this right must show that he suffered an actual injury. 26 Lewis v. Casey, 518 U.S. 343, 349-51 (1996). That is, plaintiff must allege that the deprivation 27 actually injured his litigation efforts, in that the defendant hindered his efforts to bring, or caused 28 him to lose, an actionable claim challenging his criminal sentence or conditions of confinement. 4 1 See id. at 351; Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). The right is limited to the 2 filing of direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at 3 354-55. Inmates do not have “an abstract, freestanding right to a law library or legal assistance,” 4 and “cannot establish relevant actual injury simply by establishing that [the] prison’s law library 5 or legal assistance program is subpar in some theoretical sense.” Id. at 351. 6 B. Does Plaintiff State a Potentially Cognizable Access to Courts Claim? 7 The complaint does not identify any injury plaintiff suffered as a result of defendant Bell’s 8 examination of his legal documents or refusal to copy documents. Because actual injury is a 9 jurisdictional requirement that may not be waived, an actual injury must be alleged in order to 10 state a claim for relief. Nevada Dept. of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011); 11 see, e.g., Jenkins v. McMickens, 618 F. Supp. 1472, 1474-75 (S.D. N.Y. 1985) (complaint 12 alleging certain documents pertaining to pending trial were confiscated and not returned is too 13 conclusory to support a claim of denial of access to court). 14 Further, to the extent plaintiff is alleging the refusal to provide copies infringed upon his right 15 to file a tort claim with the Victim Compensation and Government Claims Board, that claim does 16 not fall within the purview of claims covered by plaintiff’s constitutional right of access to the 17 courts. The right of access protects only the right to file direct criminal appeals, habeas petitions, 18 and civil rights actions. See Lewis, 518 U.S. at 354-55. Having failed to meet these 19 requirements, any right of access claim under the First or Fourteenth Amendments must be 20 dismissed. However, because it is not clear just what damage plaintiff is alleging, the court will 21 give plaintiff an opportunity to amend his complaint. 22 C. Liability for Reviewing Appeals 23 Plaintiff’s allegations regarding defendants Lizarraga, Vanni, Davis, Elorza, Allen, and Briggs 24 are simply that they denied his appeals. Generally, denying a prisoner’s administrative appeal 25 does not cause or contribute to the underlying violation. See George v. Smith, 507 F.3d 605, 609 26 (7th Cir. 2007); Hernandez v. Cate, 918 F. Supp. 2d 987, 1018 (C.D. Cal. Jan. 18, 2013). Further, 27 supervisory government officials may not be held liable for the unconstitutional conduct of their 28 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). 5 1 However, they may be individually liable under Section 1983 if there exists “either (1) [the 2 supervisor's] personal involvement in the constitutional deprivation; or (2) a sufficient causal 3 connection between the supervisor's wrongful conduct and the constitutional violation.” Hansen 4 v. Black, 885 F.2d 642, 646 (9th Cir. 1989). The requisite causal connection between a 5 supervisor's wrongful conduct and the violation of the prisoner's constitutional rights can be 6 established in a number of ways, including by demonstrating that a supervisor's own culpable 7 action or inaction in the training, supervision, or control of his subordinates was a cause of 8 plaintiff's injury. Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011); Larez v. City of Los 9 Angeles, 946 F.2d 630, 646 (9th Cir. 1991). A plaintiff must also show that the supervisor had the 10 requisite state of mind to establish liability, which turns on the requirement of the particular claim 11 -- and, more specifically, on the state of mind required by the particular claim -- not on a 12 generally applicable concept of supervisory liability. OSU Student Alliance v. Ray, 699 F.3d 13 1053, 1071 (9th Cir. 2012). 14 As they stand, plaintiff does not allege each of the supervisory defendants personally 15 caused him any harm. In fact, plaintiff alleges that at the first level of review, he was provided 16 copies of the documents he required. Again, however, because pro se plaintiffs are entitled to 17 liberal construction of their pleadings, plaintiff will be given the opportunity to amend his petition 18 to show how those defendants contributed to the First and Fourteenth Amendment violations he 19 claims. 20 D. Doe Defendants 21 Plaintiff names five Doe defendants who he identifies as employees of MCSP. There is no 22 provision in the Federal Rules of Civil Procedure for including unnamed defendants in a 23 complaint. The use of Does in pleading practice is generally disfavored – but it is not prohibited. 24 See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wakefield v. Thompson, 177 F.3d 25 1160, 1163 (9th Cir. 1999); Lopes v. Viera, 543 F. Supp.2d 1149, 1152 (E.D. Cal. 2008). 26 However, plaintiff must allege facts showing when, where, and how each Doe defendant violated 27 his constitutional rights. See Addis v. Ariz. Dept. of Corrs., No. CV14-1115-PHX-DGC, 2015 28 WL 875233, at *3 (D. Ariz. Mar. 2, 2015). Plaintiff makes no allegations about what the Doe 6 1 defendants have done. Because he will be provided an opportunity to amend the complaint, 2 plaintiff can allege in the amended complaint what the Doe defendants have done. He must also 3 make every effort to identify them. 4 FILING AN AMENDED COMPLAINT 5 Plaintiff is advised that in an amended complaint he must clearly identify each defendant and 6 the action that defendant took that violated his constitutional rights. The court is not required to 7 review exhibits to determine what plaintiff’s charging allegations are as to each named defendant. 8 The charging allegations must be set forth in the amended complaint so defendants have fair 9 notice of the claims plaintiff is presenting. That said, plaintiff need not provide every detailed 10 fact in support of his claims. Rather, plaintiff should provide a short, plain statement of each 11 claim. See Fed. R. Civ. P. 8(a). 12 Any amended complaint must show the federal court has jurisdiction, the action is brought 13 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 14 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 15 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 16 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation 17 of a constitutional right if he does an act, participates in another’s act or omits to perform an act 18 he is legally required to do that causes the alleged deprivation). 19 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 20 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 21 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 22 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 23 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 24 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 25 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 26 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 27 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 28 //// 7 1 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 2 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 3 An amended complaint must be complete in itself without reference to any prior pleading. 4 E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded. 5 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 6 has evidentiary support for his allegations, and for violation of this rule the court may impose 7 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 8 For the foregoing reasons, IT IS HEREBY ORDERED as follows: 9 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 7) is granted; 10 2. Plaintiff’s first amended complaint (ECF No. 8) is dismissed; 11 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 12 complaint that complies with the requirements of the Civil Rights Act, the Federal 13 Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint 14 must bear the docket number assigned this case and must be labeled “Second 15 Amended Complaint.” Plaintiff must file an original and two copies of the amended 16 complaint. Failure to file an amended complaint in accordance with this order may 17 result in a recommendation that this action be dismissed. 18 19 20 4. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint form used in this district. Dated: March 17, 2017 21 22 23 DLB:9 DLB1/prisoner-civil rights/dela2792.fac scrn 24 25 26 27 28 8

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