Gardner v. CDCR et al

Filing 29

ORDER signed by Magistrate Judge Allison Claire on 6/5/2018 DISMISSING plaintiff's first amended complaint with leave to amend within 30 days. The Clerk shall send plaintiff a complaint form.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DELBERT RONDEL GARDNER,

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Plaintiff,

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No. 2:17-cv-1921 AC P

v.

ORDER

CDCR, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. By order filed May 22, 2018, the undersigned screened the complaint and

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determined that plaintiff had failed to state a claim upon which relief could be granted and the

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complaint was dismissed with leave to amend. ECF No. 22. Plaintiff has now filed an amended

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complaint. ECF No. 28.

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I.

First Amended Complaint
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

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“frivolous, malicious, or 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).

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In the first amended complaint, as in the original complaint, plaintiff appears to allege that
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his ability to file administrative appeals is being interfered with and that his legal mail is being

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tampered with. ECF No. 28 at 3-23. It also appears that plaintiff is attempting enforce a

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settlement agreement that involved medical deliberate indifference claims. Id.

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II.

Failure to State a Claim

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A. Personal Involvement

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There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or

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connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S.

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362, 371, 376 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). “Vague and

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conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v.

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Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted).
As in the original complaint, the first amended complaint alleges that plaintiff’s

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administrative appeals and legal mail have been interfered with. ECF No. 28 at 3-23. However,

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it is not clear whether plaintiff is attempting to state a claim for interference with his access to the

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courts or whether his allegations regarding this interference are part of a claim to enforce a

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settlement agreement. Id. In either case, plaintiff has failed to explain defendants’ involvement.

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In screening the original complaint, plaintiff was specifically advised that he needed to explain

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what each individual defendant did, what kind of interference he experienced with his appeals and

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legal mail, and what injury he has suffered as a result. ECF No. 22 at 3, 6.

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Accordingly, plaintiff has failed to show that the defendants violated his rights and the

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complaint will be dismissed with leave to amend. Plaintiff is cautioned that if he once again fails

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to explain specifically what each defendant did to violate his rights, the undersigned will

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recommend dismissal of the compliant without leave to amend. Simply attaching copies of

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grievances and mail logs is not sufficient to show how the defendants violated his rights,

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particularly when the grievances do not mention the defendants.

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B. Processing of Grievances

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Prisoners do not have an independent constitutional due process entitlement to a specific

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administrative grievance procedure. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann

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v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (holding that there is no protected liberty interest to
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a grievance procedure). Prison officials are not required under federal law to process inmate

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grievances in any specific way. Plaintiff’s claims that prison officials denied or refused to

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process his grievances do not state a cognizable claim for a violation of his due process rights

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because there is no right to a particular grievance process or response. See, e.g., Towner v.

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Knowles, No. CIV S-08-2823 LKK EFB P, 2009 WL 4281999, at *2, 2009 U.S. Dist. LEXIS

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108469, at *5-6 (E.D. Cal. Nov. 20, 2009) (plaintiff failed to state claims that would indicate a

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deprivation of his federal rights after defendant allegedly screened out his inmate appeals without

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any basis); Williams v. Cate, No. 1:09-cv-00468-OWW-YNP PC, 2009 WL 3789597, at *6, 2009

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U.S. Dist. LEXIS 107920, at *16 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty

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interest in the vindication of his administrative claims.”). Accordingly, to the extent plaintiff is

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trying to bring a claim based upon the way in which his grievances were responded to, these

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claims must be dismissed.

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C. Enforcement of a Settlement Agreement

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Unless the “parties’ obligation to comply with the terms of [a] settlement agreement [are]

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made part of the order of dismissal—either by separate provision (such as a provision ‘retaining

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jurisdiction’ over the settlement agreement) or by incorporating the terms of the settlement

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agreement in the order,” then “enforcement of the settlement agreement is for state courts, unless

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there is some independent basis for federal jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of

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Am., 511 U.S. 375, 381-82 (1994). To the extent plaintiff is attempting to enforce a settlement

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agreement, this court does not appear to have jurisdiction. Plaintiff has not alleged any facts that

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would show an independent basis for enforcing a settlement agreement in federal court and, based

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on documents attached to the complaint (ECF No. 28 at 62-63), the settlement agreement

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involved the dismissal of several cases in the United States District Court for the Central District

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of California. Therefore, it appears that if any federal court has jurisdiction over the matter, it is

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the Central District Court, and then only if that court retained jurisdiction. Otherwise, plaintiff

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must bring a claim for breach of contract in state court. Accordingly, any claim for enforcement

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of the settlement agreement must be dismissed.

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III.

Leave to Amend
If plaintiff chooses to file a second amended complaint, he must demonstrate how the

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conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo,

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423 U.S. at 370-71. Also, the complaint must allege in specific terms how each named defendant

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is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can

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be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection

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between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official participation in

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civil rights violations are not sufficient.” Ivey, 673 F.2d at 268.

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Plaintiff is also informed that the court cannot refer to a prior pleading in order to make

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

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes any previous complaints. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 929 (9th Cir. 2012) (claims

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dismissed with prejudice and without leave to amend do not have to be re-pled in subsequent

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amended complaint to preserve appeal). Once plaintiff files a second amended complaint, any

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previous complaints no longer serve any function in the case. Therefore, in an amended

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complaint, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged.

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Plaintiff is reminded that if he chooses to amend the complaint, he should keep in mind

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that to state a claim for denial of access to the courts he must show a frustration or hindrance of “a

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litigating opportunity yet to be gained” (forward-looking access claim) or the loss of a meritorious

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suit that cannot now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403,

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412-15 (2002). For backward-looking claims, plaintiff “must show: 1) the loss of a

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‘nonfrivolous’ or ‘arguable’ underlying claim; 2) the official acts frustrating the litigation; and 3)

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a remedy that may be awarded as recompense but that is not otherwise available in a future suit.”

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Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007) (citing Christopher, 536 U.S. at 413-14),

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vacated on other grounds by Hust v. Phillips, 555 U.S. 1150 (2009).
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To have standing to bring this type of claim, plaintiff must also allege he suffered an

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actual injury. Lewis, 518 U.S. at 351-52; Vandelft v. Moses, 31 F.3d 794, 798 (9th Cir. 1994).

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To succeed, a prisoner must have been denied the necessary tools to litigate a nonfrivolous claim

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attacking a conviction, sentence, or conditions of confinement. Christopher, 536 U.S. at 415;

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Lewis, 518 U.S. at 353 & n.3. Plaintiff need not show that he would have been successful on the

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merits of his claims, but only that they were not frivolous. Allen v. Sakai, 48 F.3d 1082, 1085 &

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n.12 (9th Cir. 1994). A claim “is frivolous where it lacks an arguable basis either in law or in

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fact.” Neitzke, 490 U.S. at 325. The Ninth Circuit has emphasized that “[a] prisoner need not

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show, ex post, that he would have been successful on the merits had his claim been considered.

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To hold otherwise would permit prison officials to substitute their judgment for the courts’ and to

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interfere with a prisoner’s right to court access on the chance that the prisoner’s claim would

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eventually be deemed frivolous.” Allen, 48 F.3d at 1085. To properly plead a denial of access to

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the courts claim, “the complaint should state the underlying claim in accordance with Federal

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Rule of Civil Procedure 8(a), just as if it were being independently pursued, and a like plain

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statement should describe any remedy available under the access claim and presently unique to

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it.” Christopher, 536 U.S. at 417-18 (footnote omitted).

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IV.

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Plain Language Summary of this Order for a Pro Se Litigant
The complaint is dismissed with leave to amend because the facts you have alleged are not

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enough to state a claim for relief. You need to explain what each defendant did or did not do that

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you believe violated your rights. If you are trying to enforce a settlement agreement, depending

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on your circumstances it appears that you need to either file a motion in the case that was

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dismissed as a result of the agreement or file a complaint in state court.

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If you choose to amend your complaint, the second amended complaint must include all of

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the claims you want to make because the court will not look at the claims or information in your

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previous complaints. Any claims not in the second amended complaint will not be

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considered. If you do not explain what each defendant did or did not do to violate your rights, it

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will be recommended that your complaint be dismissed without leave to amend.

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

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1. Plaintiff’s first amended complaint is dismissed with leave to amend.

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2. Within thirty days from the date of service of this order, plaintiff may 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

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number assigned this case and must be labeled “Second Amended Complaint.” Plaintiff must file

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an original and two copies of the amended complaint. Failure to file an amended complaint in

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accordance with this order will result in dismissal of this action.

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3. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint

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form used in this district.

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DATED: June 5, 2018

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