Pelayo v. Collins, et al.

Filing 9

ORDER signed by Magistrate Judge Craig M. Kellison on 10/12/2016 DISMISSING plaintiff's complaint, with leave to amend; plaintiff shall file an amended complaint within 30 days.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARTIN PELAYO,

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No. 2:15-cv-1246-CMK-P

Plaintiff,

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vs.

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COLLINS, et al.,

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ORDER

Defendants.

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/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. §

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636(c) and no other party has been served or appeared in the action. Pending before the court is

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plaintiff’s complaint (Doc. 1).

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement
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of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means

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that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172,

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1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS
Plaintiff alleges his property was lost or stolen when he was sent into

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administrative segregation. Some of the property he lost included legal documents, which makes

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it difficult to continue with his case. He also appears to be alleging retaliation, but he has not

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provided sufficient facts for the court to determine what he is being retaliated against for.

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II. DISCUSSION
Plaintiff’s complaint suffers from a number of defects. Initially, to state a claim

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under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link between the actions

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of the named defendants and the alleged deprivations. See Monell v. Dep’t of Social Servs., 436

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U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the

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deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act,

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participates in another’s affirmative acts, or omits to perform an act which he is legally required

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to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official

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personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d

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266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to each individual

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defendant’s causal role in the alleged constitutional deprivation. See Leer v. Murphy, 844 F.2d
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628, 634 (9th Cir. 1988).

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A. Loss of Property

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Where a prisoner alleges the deprivation of a liberty or property interest caused by

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the random and unauthorized action of a prison official, there is no claim cognizable under 42

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U.S.C. § 1983 if the state provides an adequate post-deprivation remedy. See Zinermon v.

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Burch, 494 U.S. 113, 129-32 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984). A state’s

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post-deprivation remedy may be adequate even though it does not provide relief identical to that

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available under § 1983. See Hudson, 468 U.S. at 531 n.11. A due process claim is not barred,

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however, where the deprivation is foreseeable and the state can therefore be reasonably expected

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to make pre-deprivation process available. See Zinermon, 494 U.S. at 136-39. An available

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state common law tort claim procedure to recover the value of property is an adequate remedy.

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See id. at 128-29.

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Plaintiff’s claims regarding his missing property fails to state a cognizable claim

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under 42 U.S.C. § 1983. Whether the property was misplaced or stolen, the state provides an

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adequate remedy. This claim will be dismissed without leave to amend.

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B. Access to Court

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Prisoners have a First Amendment right of access to the courts. See Lewis v.

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Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Bradley v. Hall,

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64 F.3d 1276, 1279 (9th Cir. 1995) (discussing the right in the context of prison grievance

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procedures). This right includes petitioning the government through the prison grievance

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process. See id. Prison officials are required to “assist inmates in the preparation and filing of

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meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance

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from persons trained in the law.” Bounds, 430 U.S. at 828. The right of access to the courts,

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however, only requires that prisoners have the capability of bringing challenges to sentences or

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conditions of confinement. See Lewis, 518 U.S. at 356-57. Moreover, the right is limited to

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non-frivolous criminal appeals, habeas corpus actions, and § 1983 suits. See id. at 353 n.3 &
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354-55. Therefore, the right of access to the courts is only a right to present these kinds of claims

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to the court, and not a right to discover claims or to litigate them effectively once filed. See id. at

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354-55.

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As a jurisdictional requirement flowing from the standing doctrine, the prisoner

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must allege an actual injury. See id. at 349. “Actual injury” is prejudice with respect to

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

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non-frivolous claim. See id.; see also Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir. 2007).

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Delays in providing legal materials or assistance which result in prejudice are “not of

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constitutional significance” if the delay is reasonably related to legitimate penological purposes.

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Lewis, 518 U.S. at 362.
Here, plaintiff’s claims are unclear. It appears that plaintiff is attempting to claim

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his right to access the court has been violated by defendants Collins and Welch misplacing his

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legal documents. However, his allegations are vague, especially in relation to any specific injury.

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While he claims the loss of his legal documents makes it impossible for him to continue to

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appeal his case, he fails to provide the court with any specifics as to what documents went

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missing and how those documents were essential to a specific case. As stated above, the right of

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access to the court is a limited right, and the prisoner must allege an actual injury. Vague

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references to difficulties is insufficient. However, it is possible that the deficiencies in this claim

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can be cured through amendment, and plaintiff will be provided an opportunity to file an

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amended complaint in relation to this claim.

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C. Retaliation

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In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must

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establish that he was retaliated against for exercising a constitutional right, and that the

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retaliatory action was not related to a legitimate penological purpose, such as preserving

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institutional security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam).

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In meeting this standard, the prisoner must demonstrate a specific link between the alleged
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retaliation and the exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th

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Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner

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must also show that the exercise of First Amendment rights was chilled, though not necessarily

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silenced, by the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir.

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2000), see also Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner

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plaintiff must establish the following in order to state a claim for retaliation: (1) prison officials

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took adverse action against the inmate; (2) the adverse action was taken because the inmate

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engaged in protected conduct; (3) the adverse action chilled the inmate’s First Amendment

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rights; and (4) the adverse action did not serve a legitimate penological purpose. See Rhodes,

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408 F.3d at 568.
As to the chilling effect, the Ninth Circuit in Rhodes observed: “If Rhodes had not

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alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm

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that is more than minimal will almost always have a chilling effect.” Id. at n.11. By way of

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example, the court cited Pratt in which a retaliation claim had been decided without discussing

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chilling. See id. This citation is somewhat confusing in that the court in Pratt had no reason to

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discuss chilling because it concluded that the plaintiff could not prove the absence of legitimate

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penological interests. See Pratt, 65 F.3d at 808-09. Nonetheless, while the court has clearly

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stated that one of the “basic elements” of a First Amendment retaliation claim is that the adverse

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action “chilled the inmates exercise of his First Amendment rights,” id. at 567-68, see also

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Resnick, 213 F.3d at 449, the comment in Rhodes at footnote 11 suggests that adverse action

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which is more than minimal satisfies this element. Thus, if this reading of Rhodes is correct, the

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chilling effect element is essentially subsumed by adverse action.

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Here, plaintiff alleges defendants Collins, Welch, Kemp and the warden are

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retaliating against him by losing his property on purpose. However, he fails to allege that any

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adverse action was taken against him, that he was engaged in some type of protective conduct,

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how his First Amendment rights were chilled, or that some adverse action did not serve a
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legitimate penological purpose. As the only action involved in this case relates to lost/stolen

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property, it does not appear that any actual adverse action was taken against plaintiff. Thus, it

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does not appear that this claim is subject to cure through amendment, and this claim is dismissed

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without leave to amend.

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D. Harassment

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The treatment a prisoner receives in prison and the conditions under which the

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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

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511 U.S. 825, 832 (1994). The Eighth Amendment “embodies broad and idealistic concepts of

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dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only

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when two requirements are met: (1) objectively, the official’s act or omission must be so serious

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such that it results in the denial of the minimal civilized measure of life’s necessities; and (2)

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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

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official must have a “sufficiently culpable mind.” See id. Allegations of verbal harassment do

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not state a claim under the Eighth Amendment unless it is alleged that the harassment was

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“calculated to . . . cause [the prisoner] psychological damage.” Oltarzewski v. Ruggiero, 830

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F.2d 136, 139 (9th Cir. 1987); see also Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996),

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amended by 135 F.3d 1318 (9th Cir. 1998). In addition, the prisoner must show that the verbal

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comments were unusually gross, even for a prison setting, and that he was in fact psychologically

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damaged as a result of the comments. See Keenan, 83 F.3d at 1092.

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Here, plaintiff’s claims of harassment solely involve his lost property. None of

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the property plaintiff states was lost were essential, at least not to the extent the loss of any such

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items would be a denial of life’s necessities. Nor does plaintiff allege any of the defendants acted

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with malice in depriving him of these items. There simply is not sufficient support for any type

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of harassment claim, which does not appear to be subject to cure through amendment. This

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claim is dismissed without leave to amend.

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III. CONCLUSION

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Because it is possible that some of the deficiencies identified in this order may be

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cured by amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the

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entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Plaintiff is informed that, as a general rule, an amended complaint supersedes the original

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complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following

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dismissal with leave to amend, all claims alleged in the original complaint which are not alleged

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in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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Therefore, if plaintiff amends the complaint, the court cannot refer to the prior pleading in order

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to make plaintiff's amended complaint complete. See Local Rule 220. An amended complaint

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must be complete in itself without reference to any prior pleading. See id.

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

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Because some of the defects identified in this order cannot be cured by

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amendment, plaintiff is not entitled to leave to amend as to such claims. Plaintiff, therefore, now

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has the following choices: (1) plaintiff may file an amended complaint which does not allege the
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claims identified herein as incurable, in which case such claims will be deemed abandoned and

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the court will address the remaining claims; or (2) plaintiff may file an amended complaint which

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continues to allege claims identified as incurable, in which case the court will issue findings and

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recommendations that such claims be dismissed from this action, as well as such other orders

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and/or findings and recommendations as may be necessary to address the remaining claims.

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed with leave to amend; and

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2.

Plaintiff shall file an amended complaint within 30 days of the date of

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service of this order.

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DATED: October 12, 2016
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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