Negrete v. Lewis et al

Filing 4

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 6/21/12. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 6/22/2012)

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*E-Filed 6/22/12*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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SALVADOR NEGRETE,

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Plaintiff,

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No. C 12-0809 RS (PR)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
G.D. LEWIS, et al.,

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Defendants.

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/

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INTRODUCTION

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This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state

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prisoner. The Court now reviews the complaint pursuant to 28 U.S.C. § 1915A(a).
DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity.

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See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and

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dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may

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No. C 12-0809 RS (PR)
ORDER DISMISSING COMPLAINT

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be granted or seek monetary relief from a defendant who is immune from such relief. See id.

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§ 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica

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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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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. (quoting

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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal

United States District Court
For the Northern District of California

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conclusions cast in the form of factual allegations if those conclusions cannot reasonably be

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drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th

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Cir. 1994). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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

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of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff alleges that in 2010 defendants, employees of Pelican Bay State Prison,

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violated his right of access to the courts by failing to (1) have a subscription to and allow

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access to copies of The Daily Journal’s Daily Appellate Report, and (2) make photocopies of

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402 pages of legal materials. In 2008, plaintiff had filed in state court a traverse and boxes of

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documents in support of this traverse. The state court had not asked for the further briefing,

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or for the materials plaintiff wanted to have photocopied in 2010.

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Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518

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U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). To establish a claim for

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any violation of the right of access to the courts, the prisoner must prove that there was an

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inadequacy in the prison’s legal access program that caused him an “actual injury.” See

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Lewis, 518 U.S. at 350–55. To prove an actual injury, the prisoner must show that the

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No. C 12-0809 RS (PR)
ORDER DISMISSING COMPLAINT

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inadequacy in the prison’s program hindered his efforts to pursue a non-frivolous claim

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concerning his conviction or conditions of confinement. See id. at 354–55.

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Plaintiff’s complaint does not contain sufficient factual matter to state a claim to relief

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that is plausible on its face. Specifically, plaintiff has not alleged specific facts regarding an

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actual injury. As to claim 1, he has not shown specifically that the failure to have access to

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the Daily Appellate Report hindered his ability to prosecute his specific action. Rather, he

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asserts generally that it is important to stay informed about developments in the law. This is

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insufficient to show an actual injury. As to claim 2, petitioner has not shown that the legal

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materials he wanted copies were a necessary part of filing his action or that the failure to file

United States District Court
For the Northern District of California

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such materials resulted in an actual injury. More specifically, as his state action is still

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pending, he has not shown that the failure to copy such documents resulted in an adverse

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decision, or that they were otherwise material to prosecuting his state action.

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In sum, the record shows that he was able to pursue a legal action and file boxes of

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supporting materials. On such facts, no actual injury is shown. Accordingly, the complaint

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is DISMISSED with leave to amend. Plaintiff shall file an amended complaint within 30

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days from the date this order is filed. Failure to file an amended complaint by such time will

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result in dismissal of the action without further notice to plaintiff.

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The first amended complaint must include the caption and civil case number used in

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this order (12-0809 RS (PR)) and the words FIRST AMENDED COMPLAINT on the first

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page. Because an amended complaint completely replaces the previous complaints, plaintiff

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must include in his first amended complaint all the claims he wishes to present and all of the

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defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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Plaintiff may not incorporate material from the prior complaint by reference. Failure to file

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an amended complaint in accordance with this order will result in dismissal of this action

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without further notice to plaintiff.

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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask

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for an extension of time to do so. Failure to comply may result in the dismissal of this action

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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DATED: June 21, 2012
RICHARD SEEBORG
United States District Judge

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United States District Court
For the Northern District of California

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No. C 12-0809 RS (PR)
ORDER DISMISSING COMPLAINT

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