Cantu v. Velazqaz

Filing 11

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 1 Complaint filed by Jesse Cantu. Signed by Judge James Donato on 6/22/17. (lrcS, COURT STAFF) (Filed on 6/22/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JESSE CANTU, Plaintiff, 8 9 10 United States District Court Northern District of California 13 ORDER OF DISMISSAL WITH LEAVE TO AMEND v. M. A. VELAZQAZ, Re: Dkt. No. 3 Defendant. 11 12 Case No. 17-cv-02636-JD Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis. DISCUSSION 14 15 STANDARD OF REVIEW 16 Federal courts must engage in a preliminary screening of cases in which prisoners seek 17 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 18 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 19 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 20 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 21 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 22 Cir. 1990). 23 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 24 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 25 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 26 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 27 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 28 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 1 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 2 face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” 3 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 4 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 5 should assume their veracity and then determine whether they plausibly give rise to an entitlement 6 to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by 8 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 9 committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). LEGAL CLAIMS 11 United States District Court Northern District of California 10 Plaintiff alleges that his legal documents were confiscated and then discarded. Prisoners 12 have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 350 (1996); 13 Bounds v. Smith, 430 U.S. 817, 821 (1977). To establish a claim for any violation of the right of 14 access to the courts, the prisoner must prove that there was an inadequacy in the prison’s legal 15 access program that caused him an actual injury. See Lewis, 518 U.S. at 350-55. To prove an 16 actual injury, the prisoner must show that the inadequacy in the prison’s program hindered his 17 efforts to pursue a non-frivolous claim concerning his conviction or conditions of confinement. 18 See id. at 354-55. Destruction or confiscation of legal work may violate an inmate’s right to 19 access to the courts, see Vigliotto v. Terry, 873 F.2d 1201, 1202 (9th Cir. 1989), if plaintiff can 20 establish actual injury, see Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989). 21 During a search of plaintiff’s cell, correctional officers confiscated a pillow case that was 22 full of papers and had a rope tied to the top. Correctional officers believed it was a manufactured 23 weight bag for exercising which was not permitted. Plaintiff states that the bag contained his legal 24 documents. The pillow case and legal documents were not returned and appear to have been 25 discarded. Plaintiff states that he was hindered in his ability to litigate a state habeas petition. 26 Plaintiff has not presented sufficient allegations to support a cognizable claim. The 27 complaint is dismissed with leave to amend to provide more information. To proceed with a claim 28 for denial of access to the courts or for destruction of legal work, plaintiff must establish an actual 2 1 injury. In an amended complaint, plaintiff should describe in more detail what occurred in his 2 state habeas petition and any injury that resulted from the lack of his legal materials. 3 Plaintiff has also requested the appointment of counsel. The Ninth Circuit has held that a 4 district court may ask counsel to represent an indigent litigant only in “exceptional 5 circumstances,” the determination of which requires an evaluation of both (1) the likelihood of 6 success on the merits, and (2) the ability of the plaintiff to articulate his claims pro se in light of 7 the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 8 1991). Plaintiff appears able to present his claims adequately, and the issues are not complex, 9 therefore the request is denied. CONCLUSION 10 United States District Court Northern District of California 11 1. Plaintiff’s motion to appoint counsel (Docket No. 3) is DENIED. 12 2. The complaint is DISMISSED with leave to amend. The amended complaint must 13 be filed within twenty-eight (28) days of the date this order is filed and must include the caption 14 and civil case number used in this order and the words AMENDED COMPLAINT on the first 15 page. Because an amended complaint completely replaces the original complaint, plaintiff must 16 include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th 17 Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to 18 amend within the designated time will result in the dismissal of this case. 19 3. It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 20 Court informed of any change of address by filing a separate paper with the clerk headed “Notice 21 of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to 22 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 23 Civil Procedure 41(b). 24 25 IT IS SO ORDERED. Dated: June 22, 2017 26 27 JAMES DONATO United States District Judge 28 3 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 JESSE CANTU, Case No. 17-cv-02636-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 M. A. VELAZQAZ, Defendant. 8 9 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. United States District Court Northern District of California 11 12 13 14 15 That on June 22, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 Jesse Cantu ID: T73021 Pelican Bay State Prison P.O. Box 7500 Crescent City, CA 95532 19 20 21 Dated: June 22, 2017 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 27 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 28 4

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