Krzysztof Wolinski v. M. Colvin et al

Filing 18

ORDER OF DISMISSAL WITH LEAVE TO AMEND AND DENYING MOTION TO REMAND 17 . (Illston, Susan) (Filed on 6/8/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KRZYSZTOF WOLINSKI,
Plaintiff,

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v.

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M. COLVIN, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 17-cv-00583-SI
ORDER OF DISMISSAL WITH LEAVE
TO AMEND AND DENYING MOTION
TO REMAND
Re: Dkt. No. 17

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INTRODUCTION

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Krzysztof Wolinski, an inmate currently housed at the Richard J. Donovan Correctional

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Facility in San Diego, California, filed a pro se civil rights complaint seeking relief under 42

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U.S.C. § 1983. The complaint is now before the court for review under 28 U.S.C. § 1915A.

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Wolinski’s motion to remand this action to state court also is now before the court for

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consideration.

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BACKGROUND

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The complaint in this action was prepared using a 4-page form complaint for California

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state courts that guides a plaintiff to provide needed information by directing him to check the

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appropriate boxes and fill in the blanks. (See Docket No. 1-1 at 2-4.) Here, Wolinski’s form

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complaint has almost no factual allegations. The complaint alleges that a cause of action for

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“general negligence” is presented and alleges that damages are sought for “abuse of authority and

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power to deprive plaintiff [of] his constitutional rights, including deliberate denial of access to

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courts, and access to law library” . . . [and] maliciously causing dismissal of several court[] actions

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& federal habeas corpus in addition to deliberate perjury/forgery.” (Id. at 4 (random punctuation

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and capitalization omitted).)

The complaint cites several cases and cites several federal

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constitutional provisions, and a variety of state regulations and California Penal Code sections.

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(Id.) Attached to the complaint are approximately 100 pages of exhibits; those exhibits include

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filings in other cases, miscellaneous prison records, and other courts’ orders. (Id. at 5-105.)

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DISCUSSION

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A.

Plaintiff’s Motion To Remand the Action To State Court
Wolinski filed this action in Monterey County Superior Court on January 11, 2016.

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(Docket No. 1-1 at 2.) On February 6, 2017, the five defendants filed a notice of removal of the

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action to federal court, representing that all five defendants had been served with the summons and

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United States District Court
Northern District of California

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complaint on January 17, 2017. (Docket No. 1 at 2.)

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Shortly after defendants removed this action to federal court, Wolinski informed this court

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that he wanted to file a motion to get the case sent back to state court and sought an extension of

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the deadline to file such a motion.

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challenge the removal of an action was to file a motion to remand and extended the deadline for

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Wolinski to file such a motion. (Docket Nos. 12, 14, 16.)

The court explained that the procedural mechanism to

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Wolinski now moves to remand the action to the Monterey County Superior Court.

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(Docket No. 17.) He argues that the “cluster of issues involved in this case are complex, and yet

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barred by” Heck v. Humphrey, 512 U.S. 477 (1994), and that an action must be remanded if the

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federal court lacks subject matter jurisdiction. (Docket No. 17 at 1-2.) His argument is rather

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confused but appears to be that Heck is implicated in this case because prison officials’ refusal to

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provide assistance and supplies for his litigation efforts in earlier cases caused him to lose those

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cases. (Id. at 3-4.)

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The case of Heck v. Humphrey, 512 U.S. 477 (1994), held that a plaintiff cannot bring a

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civil rights action for damages for a wrongful conviction or imprisonment, or for other harm

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caused by actions whose unlawfulness would render a conviction or sentence invalid, unless that

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conviction or sentence already has been determined to be wrongful. See id. at 486-87. A

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conviction or sentence may be determined to be wrongful by, for example, being reversed on
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appeal or being set aside when a state or federal court issues a writ of habeas corpus. See id. The

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Heck rule also prevents a person from bringing an action that -- even if it does not directly

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challenge a conviction or sentence or the duration of a plaintiff’s confinement -- would imply that

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the conviction or sentence decision affecting the duration of confinement was invalid. If success

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in the § 1983 action would “necessarily demonstrate the invalidity of confinement or its duration,”

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the § 1983 action is barred no matter the relief sought (i.e., damages or equitable relief) as long as

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the conviction or decision affecting a plaintiff’s confinement has not been set aside. Wilkinson v.

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Dotson, 544 U.S. 74, 81-82 (2005).
The Heck rule does not appear to apply to this action complaining of denial of access to the

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courts. Wolinski does not show that Heck applies to any of his claims or that there might be a

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United States District Court
Northern District of California

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Heck problem in federal court that would not also exist in state court. Like the federal courts,

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California courts apply the Heck bar. See, e.g., Yount v. City of Sacramento, 43 Cal. 4th 885 (Cal.

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2008) (applying Heck rule to § 1983 claim); Baranchik v. Fizulich, 10 Cal. App. 5th 1210, 217

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Cal. Rptr. 3d 425, 431-35 (Cal. Ct. App. 2017) (claim barred by Heck rule). Wolinski does not

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show that Heck supports a remand of this action to state court.

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Wolinski also does not show any procedural defect in defendants’ removal of this action.

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The notice of removal appears proper on its face: (1) the removal appears to be timely in that

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moving defendants report that they were served with the complaint on January 17, 2017, and

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removed the action on February 6, 2017, less than thirty days later (see Docket No. 1 at 1); and (2)

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the complaint presents a federal question because, although the allegations are mere conclusions,

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the complaint purports to assert claims for violations of plaintiff’s rights under the First, Fifth,

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Sixth and Fourteenth Amendment to the U.S. Constitution (see Docket No. 1-1 at 4). For these

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reasons, Wolinski’s motion to remand this action to state court is DENIED. (Docket No. 17.)

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B.

Review of Complaint

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A federal court must engage in a preliminary screening of any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity. See 28

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U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any
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claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or

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seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a

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

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988).

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The complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a). “Specific facts are not necessary; the statement

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need only . . . give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.”

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United States District Court
Northern District of California

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omitted). Although 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. . . . Factual

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

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer

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“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. Pro se complaints

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must be liberally construed. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations and internal quotation marks

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Wolinski’s complaint fails to state a claim upon which relief may be granted because he

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has not alleged enough facts to plausibly suggest he suffered a constitutional violation due to

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defendants’ acts or omissions. As it appears that he is attempting to assert one or more claims for

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denial of access to the courts, this court will give guidance for pleading such claims.

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

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343, 350 (1996). The Ninth Circuit has “traditionally differentiated between two types of access

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to court claims: those involving prisoners’ right[s] to affirmative assistance and those involving

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prisoners’ rights to litigate without active interference.” Silva v. Di Vittorio, 658 F.3d 1090, 1102

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(9th Cir.2011) (emphasis in source), overruled on other grounds as stated by Richey v. Dahne, 807

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F.3d 1202, 1209 n.6 (9th Cir. 2015).

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To allege a claim for denial of access to the courts of the first sort (i.e., denial of

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affirmative assistance), a plaintiff must allege facts showing that there was an inadequacy in the

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prison's legal access program that caused him an actual injury. See Lewis v. Casey, 518 U.S. at

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350-51. To prove an actual injury, the prisoner must show that the inadequacy hindered him in

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presenting a non-frivolous claim concerning his conviction or conditions of confinement. See id.

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at 355. Examples of impermissible hindrances include: a prisoner whose complaint was dismissed

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for failure to satisfy some technical requirement which, because of deficiencies in the prison's

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legal assistance facilities, he could not have known; and a prisoner who had "suffered arguably

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actionable harm" that he wished to bring to the attention of the court, but was so stymied by the

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inadequacies of the prison's services that he was unable even to file a complaint. See id. at 351.

United States District Court
Northern District of California

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The constitutional right to litigate without interference encompasses the First Amendment

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right to petition the government and Fourteenth Amendment due process right to pursue legal

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redress by filing civil actions that have a reasonable basis in law or fact. See Silva, 658 F.3d at

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1102. To state a claim for a violation of the right to litigate without active interference, the

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plaintiff must allege that he has suffered an actual injury, such as the dismissal of his pending

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action. See id. at 1103–04. Additionally, the “underlying cause of action, whether anticipated or

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lost, is an element that must be described in the complaint, just as much as allegations must

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describe the official acts frustrating the litigation.” Christopher v. Harbury, 536 U.S. 403, 415

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(2002).

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sufficient to give fair notice to a defendant, id. at 416, and to the court in a prisoner action that

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must be screened under 28 U.S.C. § 1915A.

The underlying cause of action must be described by allegations in the complaint

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Leave to amend is granted so that Wolinski may assert his claims in an amended complaint

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that cures the deficiencies identified in this order. He must allege enough facts to state a claim for

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denial of access to the courts that is plausible on its face. The court will not read through his

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exhibits to piece together a claim for Wolinski; he must fully set it out in his amended complaint.

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If he contends that there have been several violations of his right to access the courts, he must

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allege each one separately. Wolinski must be careful to link one or more defendants to each of his

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claims. He should not refer to them as a group (e.g., “the defendants”); rather, he should identify
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each involved defendant by name and link each of them to his claim by explaining what each

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involved defendant did or failed to do that caused a violation of his rights. See Leer v. Murphy,

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844 F.2d 628, 634 (9th Cir. 1988). If he wants to name a supervisor as a defendant, he must allege

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(1) personal involvement in the constitutional deprivation or (2) a sufficient causal connection

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between the supervisor's wrongful conduct and the constitutional violation. See Starr v. Baca, 652

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F.3d 1202, 1206-07 (9th Cir. 2011).

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If Wolinski wants to plead one or more state law claims against defendants, he must

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identify and allege the particular state law claim(s), and should allege that he is suing for relief

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under 28 U.S.C. § 1367 (the supplemental jurisdiction provision) as well as under 42 U.S.C.

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§ 1983 (the civil rights statute that gives the Court federal question jurisdiction over the case).

United States District Court
Northern District of California

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CONCLUSION

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Plaintiff’s motion to remand this action to state court is DENIED. (Docket No. 17.)

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The complaint is dismissed with leave to amend. Plaintiff must file an amended complaint

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that complies with the directions in this order no later than July 14, 2017, and must include the

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caption and civil case number used in this order and the words AMENDED COMPLAINT on the

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first page. Plaintiff is cautioned that his amended complaint must be a complete statement of his

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claims. See Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc) ("For claims

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dismissed with prejudice and without leave to amend, we will not require that they be repled in a

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subsequent amended complaint to preserve them for appeal. But for any claims voluntarily

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dismissed, we will consider those claims to be waived if not repled.") Failure to file the amended

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complaint will result in the dismissal of this action.

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IT IS SO ORDERED.
Dated: June 8, 2017
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SUSAN ILLSTON
United States District Judge

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