McCowan v. Seeborg et al

Filing 12

ORDER OF DISMISSAL WITH PARTIAL LEAVE TO AMEND. Amended Complaint due by 1/11/2016. Signed by Judge Haywood S. Gilliam, Jr. on 12/14/2015. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 12/14/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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VINCENT PRICE MCCOWAN,
Plaintiff,

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United States District Court
Northern District of California

ORDER OF DISMISSAL WITH
PARTIAL LEAVE TO AMEND

v.

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Case No. 15-cv-04197-HSG (PR)

RICHARD SEEBORG, et al.,
Defendants.

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Plaintiff, an inmate at Salinas Valley State Prison (“SVSP”), filed this pro se civil rights

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complaint under 42 U.S.C. § 1983. Plaintiff is granted leave to proceed in forma pauperis (“IFP”)

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in a separate order. For the reasons stated below, the complaint is dismissed with partial leave to

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amend.

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BACKGROUND
Plaintiff’s claims are difficult to understand but he appears to allege that United States

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District Judge Richard Seeborg has impeded plaintiff’s access to the courts by dismissing an

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earlier action brought by plaintiff, No. C 15-3419 RS. A review of the earlier action shows that it

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was filed on July 24, 2015, and that same day, the Clerk notified plaintiff that he had not filed a

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complaint or an IFP application. The notices warned plaintiff that he must file the required

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documents within twenty-eight days or his action would be dismissed. The action was dismissed

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on September 1, 2015 based on plaintiff’s failure to file an IFP application and complaint.

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In this action, plaintiff alleges that he did not receive the Clerk’s notices regarding the

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inadequacies in his filings in No. C 15-3419 RS until August 27, 2015. Plaintiff appears to allege

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that this delay was attributable to the omission of his prisoner identification number on his mailing

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address, which caused the notices to be returned to the Court and later re-sent to plaintiff. In

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addition to Judge Seeborg, plaintiff names the former Clerk of the Court of the Northern District,

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Richard Wieking, and Deputy Clerk Corinne Lew as defendants. Finally, plaintiff names an

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“Officer Cardona” as a defendant but fails to identify who this defendant is and provides no facts

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whatsoever linking this defendant to plaintiff’s allegations of wrongdoing.
DISCUSSION

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A.

Standard of Review

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A federal court must conduct a preliminary screening in any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims

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United States District Court
Northern District of California

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that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek

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

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(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police

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Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the

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statement need only “‘give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests.’” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although

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in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s

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obligation to provide the grounds of his ‘entitle[ment] to relief’ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .

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Factual allegations must be enough to raise a right to relief above the speculative level.” Bell

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Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint

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must proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 1974.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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the alleged violation was committed by a person acting under the color of state law. See West v.

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Atkins, 487 U.S. 42, 48 (1988).
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B.

Legal Claims

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1.

Access to Courts Claim

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Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S.
343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). In Sands v. Lewis, 886 F.2d 1166

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(1989), the Ninth Circuit divided such cases into two categories: (1) those which assert inadequate

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law libraries or alternative sources of legal knowledge sufficient to prepare a suit, and (2) all

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others. Id. at 1171. As to the second category, the court required proof of “actual injury” to state

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a claim. Id. The court did not require actual injury for the first category, id., but that part of the

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holding was overruled by Lewis v. Casey, 518 U.S. 343, 350-55 (1996). In short, whether a

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prisoner’s claim is that a prison law library is inadequate or is that official action somehow

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United States District Court
Northern District of California

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blocked his access to the court, he or she must allege “actual injury.”

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“Actual injury” is defined as the prisoner being hindered in his efforts to pursue a non-

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frivolous claim concerning his conviction or conditions of confinement. Id. at 354-55.

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“Impairment of any other litigating capacity is simply one of the incidental (and perfectly

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constitutional) consequences of conviction and incarceration.” Id. The right of access to the court

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is limited to the initiation of a court action. The state is not required to enable the prisoner to

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discover grievances or to litigate effectively once in court. Id. at 354.

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Plaintiff does not allege actual injury under this standard. Moreover, it appears from a

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review of the docket in his earlier action that he cannot. Specifically, C 15-3419 RS was

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dismissed without prejudice to plaintiff moving to re-open the action after properly completing a

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complaint on a court-approved form and completing an IFP application. Plaintiff filed the

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required documents in C 15-3419 RS on September 8, 2015, and they are awaiting initial review

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before Judge Seeborg. Thus there is no indication that plaintiff’s ability to litigate that action has

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been compromised. For this reason, as well as those discussed below, the case will be dismissed

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without leave to amend as to defendants Seeborg, Wieking, and Lew.

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2.

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Further, federal judges and federal clerks of court are immune from the claims alleged

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Immunity

here. Mullis v. United States Bankruptcy Court, 828 F.3d 1385, 1391-93 (9th Cir. 1987)
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(discussing distinction between Bivens actions against judges and clerks acting under color of

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federal law and Section 1983 actions against judges and clerks acting under color of state law;

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holding that federal judges and clerks of court are immune from both damages claims and

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injunctive relief claims). Given defendants’ immunity, no amendment could remedy this

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deficiency. For this additional reason the case will be dismissed without leave to amend as to

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defendants Seeborg, Wieking, and Lew.

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3.

Injury

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As discussed above, plaintiff has suffered no injury. To extent he claims any injury other
than to the progress of his earlier case, it is psychological. The Prisoner Litigation Reform Act

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(“PLRA”) provides that prisoners may recover for mental or emotional injuries suffered while

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United States District Court
Northern District of California

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incarcerated only if they first show that they suffered a physical injury. See 42 U.S.C. § 1997e(e).

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Plaintiff has not alleged a physical injury, and it is clear from the nature of the claims that he could

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not. For this additional reason the case will be dismissed without leave to amend as to defendants

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Seeborg, Wieking, and Lew.

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4.

Defendant Cardona

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As discussed above, plaintiff alleges no facts linking defendant Cardona to his claims.

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Leave to amend will be granted so that plaintiff may attempt to remedy this deficiency, if he can

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do so in good faith. In his amended complaint, plaintiff must “set forth specific facts” regarding

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what defendant Cardona did, or did not do, that violated his federal constitutional rights. Leer v.

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Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Sweeping conclusory allegations will not suffice.
CONCLUSION

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For the reasons stated above, the Court orders as follows:

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1.

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The claims against defendants Seeborg, Wieking, and Lew are DISMISSED

without leave to amend. The Clerk shall terminate these defendants from the docket in this action.
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If plaintiff believes he can allege a claim against defendant Cardona in good faith,

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plaintiff must file an AMENDED COMPLAINT within twenty-eight (28) days from the date this

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order is filed. The amended complaint must include the caption and civil case number used in this

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order (C 15-4197 HSG (PR)) and the words AMENDED COMPLAINT on the first page.
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Plaintiff may not incorporate material from the prior complaint by reference. Failure to file the

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amended complaint by the deadline will result in the dismissal of the action. The Clerk of the

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Court is directed to send plaintiff a blank civil rights form along with his copy of this order.

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Plaintiff is advised that an amended complaint supersedes the original complaint. “[A] plaintiff

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waives all causes of action alleged in the original complaint which are not alleged in the amended

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complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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3.

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 of

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Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to do
so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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United States District Court
Northern District of California

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: 12/14/2015

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________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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