Smith v. Ebert

Filing 8

ORDER OF DISMISSAL. For the foregoing reasons, this action is DISMISSED with prejudice for failure to state a claim on which relief may be granted.The Clerk shall terminate any pending motions and close the file. Signed by Judge Edward J. Davila on 4/8/2016. (Attachments: # 1 Certificate/Proof of Service)(ecg, COURT STAFF) (Filed on 4/8/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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JERRY SMITH,

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Plaintiff,

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v.

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BRANDY EBERT,
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Defendant.
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No. C 15-03264 EJD (PR)
ORDER OF DISMISSAL

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Plaintiff, a state prisoner at San Quentin State Prison (“SQSP”), filed the

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instant civil rights action in pro se pursuant to 42 U.S.C. § 1983, challenging

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conditions of confinement. The Court reviewed the complaint pursuant to 28 U.S.C.

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§ 1915A and dismissed it with leave to amend to cure deficiencies identified by the

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Court. (Docket No. 4.) Plaintiff has filed his first amended complaint (“FAC”).

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(Docket No. 7.) For the reasons that follow, the Court now DISMISSES this action

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with prejudice.

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DISCUSSION
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Standard of Review
A federal court must conduct a preliminary screening in any case in which a

Order of Dismissal
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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must

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identify any cognizable claims and dismiss any claims that are frivolous, malicious,

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fail to state a claim upon which relief may be granted or seek monetary relief from a

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defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro se

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

was violated, and (2) that the alleged violation was committed by a person acting

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For the Northern District of California

elements: (1) that a right secured by the Constitution or laws of the United States

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United States District Court

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under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Plaintiff’s Claims
Plaintiff claims that Defendant Ebert denied him access to the “tentative

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ruling” procedure for his case in Marin County Superior Court (Case No.

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CV1401048), and thereby denied an opportunity to argue against the entry of a pre-

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filing order declaring him to be a vexatious litigant. (FAC at 3.) In support,

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Plaintiff attaches a copy of the second level appeal response on the matter, in which

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he complained of the lack of access to tentative rulings from the courts and the

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identify of the staff member who denied him access to the prison telephone to obtain

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his tentative rulings for two cases, one of which is Case No. CV1401048. (Id.,

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Attach. at 1-3.)

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Prisoners have a constitutional right of access to the courts. See Lewis v.

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Casey, 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). To

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establish a claim for any violation of the right of access to the courts, the prisoner

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must prove that there was an inadequacy in the prison’s legal access program that

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

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

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his efforts to pursue a non-frivolous claim concerning his conviction or conditions of
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confinement. See id. at 354-55.

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According to the second level appeal response, Defendant Ebert is identified

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as the staff member who denied Plaintiff access to the telephone. The response also

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explains that Defendant Ebert acted in accordance with prison regulations requiring

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that an inmate have either a court order or a “CourtCall confirmation” allowing him

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access; Plaintiff did not meet the criteria because he had neither documents. (FAC,

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Attach. at 2.) Plaintiff’s appeal was granted in part, such that the prison agreed to

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work with Marin County Superior Court staff to put in place a court procedure for

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inmates to obtain and appear in court regarding the tentative rulings. (Id. at 3.)
Although it appears that Plaintiff’s allegations against Defendant Ebert are

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For the Northern District of California

United States District Court

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true, Plaintiff fails to state a claim because he cannot show that Defendant Ebert’s

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actions caused him an actual injury. The second level appeal response indicates that

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“contrary to [Plaintiff’s] claims in this appeal,” Plaintiff was permitted to appear

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before the superior court regarding the tentative rulings: the response refers to the

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Marin County court dockets for Cases CV1400857 and CD1401048, “noting

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[Plaintiff] appeared before the court regarding both tentative rulings.” (Id. at 3.)

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Because Plaintiff subsequently appeared in court for both tentative rulings, it cannot

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be said that an inadequacy in the prison’s program, – i.e., the denial of access to the

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prison’s telephone, – hindered Plaintiff’s efforts to pursue a non-frivolous claim

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concerning his conviction or conditions of confinement. See Lewis, 518 U.S. at

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354-55.

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Plaintiff’s allegations are therefore insufficient to state an access to the courts

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claim. Further leave to amend will not be granted since it is clear that no

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amendment can cure the defects identified by the Court. See, e.g., Lucas v.

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Department of Corrections, 66 F.3d 245, 248 (9th Cir. 1995). Accordingly, this

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action is DISMISSED with prejudice for failure to state a claim.

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CONCLUSION

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For the foregoing reasons, this action is DISMISSED with prejudice for

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failure to state a claim on which relief may be granted.

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The Clerk shall terminate any pending motions and close the file.

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IT IS SO ORDERED.

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DATED:

4/8/2016

EDWARD J. DAVILA
United States District Judge

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For the Northern District of California

United States District Court

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Order of Dismissal
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