Mwasi v. Sacramento Prison et al

Filing 11

ORDER signed by Magistrate Judge Craig M. Kellison on 02/10/17 ordering plaintiff's complaint is dismissed with leave to amend. Plaintiff shall file a first amended complaint within 30 days of the date of service of this order. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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K. MWASI,

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No. 2:15-CV-2685-TLN-CMK-P
Plaintiff,

vs.

ORDER

SACRAMENTO PRISON, et al.,
Defendants.
/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
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

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,
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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

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

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

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

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the 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

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Plaintiff names the following as defendants: (1) “Sacramento Prison”; (2) Gomez;

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(3) E. Banuelos; (4) F. Austin; (5) Connie Gipson; (6) M. Kimbrell; (7) T. Campbell; (8)

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Tumacder; (9) Beer; (10) T. Fujioka; (11) A. Morrison; (12) Vela; and (13) Ruiz.

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For “Claim 1,” plaintiff alleges “they illegally w/o due process discarded

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property.” Plaintiff also states: “Personal & legal files active criminal, interfere litigation 1st

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Amend.” Plaintiff then lists the following defendants: Beer, Banuelos, Austin, Fujioka,

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Morrison, and Gipson.

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For “Claim 2,” plaintiff alleges “they put a glass a lot pieces glass in cheese,

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personal cheese, attempt to kill me, in property.” Plaintiff lists the following defendants: Gomez,

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Vela, and Ruiz.

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For “Claim 3,” plaintiff alleges “they illegally discarded property, TV, w/o due

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process: TV, pictures, food, active legal files, law books, reg. Books, etc.” Plaintiff adds:

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“Interfering litigation, 1st Amend.” Plaintiff lists the following defendants: Banuelos, Kimbrell,

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Tumacder, and Campbell.

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Finally, for “Claim 4,” plaintiff alleges “they illegally discarded property w/o due

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process: law books, personal property, etc.” Plaintiff lists “Bustinza, Guard,” who is not a named

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defendant.
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II. DISCUSSION

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Plaintiff’s complaint suffers from a number of defects, each discussed below.

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A.

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Defendant “Sacramento Prison” is Immune
The Eleventh Amendment prohibits federal courts from hearing suits brought

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against a state both by its own citizens, as well as by citizens of other states. See Brooks v.

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Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This prohibition

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extends to suits against states themselves, and to suits against state agencies. See Lucas v. Dep’t

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of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d 1040, 1045 (9th

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Cir. 1989). A state’s agency responsible for incarceration and correction of prisoners is a state

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agency for purposes of the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782

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(1978) (per curiam); Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th cir. 1993) (en banc).

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Accordingly, defendant “Sacramento Prison” is immune from suit and must be dismissed.

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B.

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Plaintiff Fails to Establish a Causal Link
To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual

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connection or link between the actions of the named defendants and the alleged deprivations.

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See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts, or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and

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conclusory allegations concerning the involvement of official personnel in civil rights violations

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

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plaintiff must set forth specific facts as to each individual defendant’s causal role in the alleged

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constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Here, plaintiff fails to set forth specific facts as to each named defendant’s role in

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the alleged constitutional violations. Simply alleging “they” did something is too vague to satisfy

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the pleading requirements outlined above. Plaintiff will be provided an opportunity to amend to

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set forth specific facts as to each defendant’s alleged conduct.

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C.

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Plaintiff Fails to State a Due Process Claim
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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Here, plaintiff vaguely alleges that his property was taken without due process.

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Because California’s tort claim procedures constitute an adequate post-deprivation remedy,

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plaintiff cannot state a cognizable due process claim.

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D.

Plaintiff Fails to State a First Amendment Claim
Plaintiff appears to allege, albeit rather vaguely, that his First Amendment rights

were violated. Specifically, he states that “they” interfered with active criminal litigation.
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.

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Here, plaintiff’s allegations do not, among other things, establish an actual injury.

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Plaintiff has not specified how he was prejudiced with respect to contemplated or existing

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litigation. Plaintiff will be provided an opportunity 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).
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. Specifically, plaintiff

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cannot state a cognizable due process claim based on confiscation of personal property. Nor can

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plaintiff state any claim against “Sacramento Prison,” which is immune from suit.

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Plaintiff, therefore, now has the following choices: (1) plaintiff may file an

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amended complaint which does not allege the claims identified herein as incurable, in which

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case such claims will be deemed abandoned and the court will address the remaining claims; or

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(2) plaintiff may file an amended complaint which continues to allege claims identified as

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incurable, in which case the court will issue findings and recommendations that such claims be

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dismissed from this action, as well as such other orders and/or findings and recommendations as

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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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Plaintiff shall file a first amended complaint within 30 days of the date of

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service of this order.

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DATED: February 10, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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