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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JESSE CANTU,
Plaintiff,

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United States District Court
Northern District of California

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
M. A. VELAZQAZ,

Re: Dkt. No. 3

Defendant.

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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

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STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims

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which 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. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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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.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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

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the Constitution or laws of the United States was violated, and (2) the alleged deprivation was

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committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
LEGAL CLAIMS

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United States District Court
Northern District of California

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Plaintiff alleges that his legal documents were confiscated and then discarded. Prisoners

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have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 350 (1996);

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Bounds v. Smith, 430 U.S. 817, 821 (1977). To establish a claim for any violation of the right of

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access to the courts, the prisoner must prove that there was an inadequacy in the prison’s legal

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access program that caused him an actual injury. See Lewis, 518 U.S. at 350-55. To prove an

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actual injury, the prisoner must show that the inadequacy in the prison’s program hindered his

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efforts to pursue a non-frivolous claim concerning his conviction or conditions of confinement.

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See id. at 354-55. Destruction or confiscation of legal work may violate an inmate’s right to

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access to the courts, see Vigliotto v. Terry, 873 F.2d 1201, 1202 (9th Cir. 1989), if plaintiff can

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establish actual injury, see Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989).

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During a search of plaintiff’s cell, correctional officers confiscated a pillow case that was

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full of papers and had a rope tied to the top. Correctional officers believed it was a manufactured

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weight bag for exercising which was not permitted. Plaintiff states that the bag contained his legal

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documents. The pillow case and legal documents were not returned and appear to have been

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discarded. Plaintiff states that he was hindered in his ability to litigate a state habeas petition.

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Plaintiff has not presented sufficient allegations to support a cognizable claim. The

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complaint is dismissed with leave to amend to provide more information. To proceed with a claim

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for denial of access to the courts or for destruction of legal work, plaintiff must establish an actual
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injury. In an amended complaint, plaintiff should describe in more detail what occurred in his

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state habeas petition and any injury that resulted from the lack of his legal materials.

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Plaintiff has also requested the appointment of counsel. The Ninth Circuit has held that a

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district court may ask counsel to represent an indigent litigant only in “exceptional

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circumstances,” the determination of which requires an evaluation of both (1) the likelihood of

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success on the merits, and (2) the ability of the plaintiff to articulate his claims pro se in light of

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the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991). Plaintiff appears able to present his claims adequately, and the issues are not complex,

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therefore the request is denied.
CONCLUSION

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United States District Court
Northern District of California

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1.

Plaintiff’s motion to appoint counsel (Docket No. 3) is DENIED.

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2.

The complaint is DISMISSED with leave to amend. The amended complaint must

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be filed within twenty-eight (28) days of the date this order is filed and must include the caption

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

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page. Because an amended complaint completely replaces the original complaint, plaintiff must

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include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to

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amend within the designated time will result in the dismissal of this case.

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3.

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

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

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: June 22, 2017

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JESSE CANTU,

Case No. 17-cv-02636-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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M. A. VELAZQAZ,
Defendant.

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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

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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.

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Jesse Cantu ID: T73021
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95532

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Dated: June 22, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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