Cantu v. Velazqaz

Filing 13

ORDER OF DISMISSAL WITH LEAVE TO AMEND the Amended Complaint filed by Jesse Cantu. Signed by Judge James Donato on 8/8/17. (lrcS, COURT STAFF) (Filed on 8/8/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JESSE CANTU aka JESUS CANTU, Plaintiff, 8 9 10 ORDER OF DISMISSAL WITH LEAVE TO AMEND v. M. A. VELAZQAZ, Defendant. 11 United States District Court Northern District of California Case No. 17-cv-02636-JD 12 13 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. 14 The original complaint was dismissed with leave to amend and plaintiff has filed an amended 15 complaint. DISCUSSION 16 17 STANDARD OF REVIEW 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 20 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 21 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 22 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 23 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 24 Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 27 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 28 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 1 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 2 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 3 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 4 face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” 5 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 6 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 7 should assume their veracity and then determine whether they plausibly give rise to an entitlement 8 to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 11 United States District Court Northern District of California 10 committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 12 LEGAL CLAIMS 13 Plaintiff alleges that his legal documents were confiscated and then discarded. Prisoners 14 have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 350 (1996); 15 Bounds v. Smith, 430 U.S. 817, 821 (1977). To establish a claim for any violation of the right of 16 access to the courts, the prisoner must prove that there was an inadequacy in the prison’s legal 17 access program that caused him an actual injury. See Lewis, 518 U.S. at 350-55. To prove an 18 actual injury, the prisoner must show that the inadequacy in the prison’s program hindered his 19 efforts to pursue a non-frivolous claim concerning his conviction or conditions of confinement. 20 See id. at 354-55. Destruction or confiscation of legal work may violate an inmate’s right to 21 access to the courts, see Vigliotto v. Terry, 873 F.2d 1201, 1202 (9th Cir. 1989), if plaintiff can 22 establish actual injury, see Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989). 23 During a search of plaintiff’s cell, correctional officers confiscated a pillow case that was 24 full of papers and had a rope tied to the top. Correctional officers believed it was a manufactured 25 weight bag for exercising which was not permitted. Plaintiff states that the bag contained his legal 26 documents. The pillow case and legal documents were not returned and appear to have been 27 discarded. Plaintiff states that he was hindered in his ability to challenge his conviction. The 28 complaint was dismissed with leave to amend for plaintiff to provide more information to 2 1 2 establish actual injury. In the amended complaint, plaintiff states that the loss of his legal documents which 3 included transcripts prevented him from effectively presenting a non-frivolous claim about his 4 criminal conviction. While plaintiff has presented a formulaic recitation of the elements of the 5 cause of action, this is insufficient, and plaintiff must present well-pleaded factual allegations that 6 plausibly give rise to an entitlement to relief. The amended complaint is dismissed with leave to 7 amend to provide more information regarding how he suffered an actual injury. Plaintiff should 8 describe when he was convicted, the status of his appeals, and what specific appeal was disrupted 9 by the confiscation of the legal documents. 10 United States District Court Northern District of California 11 12 13 14 15 16 17 Plaintiff states that he was sentenced to life without the possibility of parole on January 30, 2015, related to case No. FVA014405. However, it appears that plaintiff could be discussing his conviction for three counts of first degree murder on case No. FVA014405 that was affirmed on direct appeal by the California Court of Appeal on October 28, 2003. People v. Jesus Cantu, No. E032702, 2003 WL 22436095 (Cal. Ct. App. Oct. 28, 2003). That case was affirmed but remanded for resentencing to stay certain aspects of the sentence. Id. at *4. Plaintiff also appears to have filed a habeas petition in the California Court of Appeal that was denied on January 5, 2015. In a second amended complaint plaintiff should provide more detail concerning the status of his appeal and how there was an actual injury. 18 CONCLUSION 19 1. The amended complaint is DISMISSED with leave to amend. The second 20 amended complaint must be filed within twenty-eight (28) days of the date this order is filed and 21 must include the caption and civil case number used in this order and the words AMENDED 22 COMPLAINT on the first page. Because an amended complaint completely replaces the original 23 complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 24 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the original complaint 25 by reference. Failure to amend within the designated time will result in the dismissal of this case. 26 2. 27 It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address by filing a separate paper with the clerk headed “Notice 28 3 1 of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to 2 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 3 Civil Procedure 41(b). 4 5 IT IS SO ORDERED. Dated: August 8, 2017 6 7 JAMES DONATO United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 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 August 8, 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: August 8, 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 5

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