Davis et al v. Small et al
Filing
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ORDER granting 20 Motion for Permission for Removal of All Exhibits from Previous Pleadings to Attach to Amended Complaint; Dismissing Defendants Not Stated in Second Amended Complaint; and Dismissing Claims For Failure to State a Claim and Directing USMS to Effect Service on Remaining Defendants and Claims. Signed by Judge Michael M. Anello on 6/9/2011. (Pro Per Packaged Prepared) (All non-registered users served via U.S. Mail Service)(leh)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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RUBEN M. DAVIS,
CDCR # C-23494
Civil
No.
Plaintiff,
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ORDER:
(1) GRANTING MOTION FOR
PERMISSION FOR REMOVAL OF
EXHIBITS;
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(2) DISMISSING DEFENDANTS
SMALL, CATE, OCHOA, JANDA,
TRUJILLO, STRATTON,
EDWARDS, BELTRAN, DAVIS,
JIMENEZ, BETTENCOURT,
GARCIA, RUTLEDGE,
RODRIGUEZ, MATA, MANNING
AND ADAMS;
vs.
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10cv1606 MMA (MDD)
E. LOYA; MATTHEW RESLER; JOSHUA
ROCHA; R. FREGOSO,
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Defendants.
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(3) DISMISSING CLAIMS FOR
FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. §§
1915(e)(2) & 1915A; AND
(4) DIRECTING USMS TO EFFECT
SERVICE OF REMAINING CLAIMS
AND DEFENDANTS FOUND IN
SECOND AMENDED COMPLAINT
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I.
PROCEDURAL HISTORY
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On July 29, 2010, Plaintiff, a state inmate currently incarcerated at the California State
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Prison - Los Angeles County located in Lancaster, California, and proceeding pro se, filed a
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civil rights Complaint pursuant to 42 U.S.C. § 1983 along with another inmate, Eric Lindfors.
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In addition, both Plaintiffs filed Motions to Proceed In Forma Pauperis (“IFP”) pursuant to 28
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U.S.C. § 1915(a). The Court denied Plaintiff Davis’ Motion for Leave to Proceed IFP, severed
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claims and parties and dismissed the action pursuant to 28 U.S.C. § 1915A. See Oct. 12, 2010
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Order at 4-5. After granting Plaintiff several extensions of time, Plaintiff Davis filed his First
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Amended Complaint along with a renewed Motion for Leave to Proceed IFP on December 23,
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2010. The Court granted Plaintiff’s Motion to Proceed IFP and sua sponte dismissed his First
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Amended Complaint for failing to state a claim upon which relief could be granted. See Feb.
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27, 2011 Order at 5-6. Plaintiff was granted leave to file a Second Amended Complaint and
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cautioned that any Defendants not named and claims not re-alleged in his Amended Complaint
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would be deemed to have been waived. Id. (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
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1987)). On May 9, 2011, Plaintiff filed his Second Amended Complaint (“SAC”) along with
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a “Motion for Permission for Removal of All Exhibits from Previous Pleadings to Attach to
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Amended Pleading Herein” [ECF No. 20].
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In his Second Amended Complaint, Plaintiff no longer names Ochoa, Janda, Trujillo,
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Stratton, Beltran, Davis, Jimenez, Bettencourt, Garcia, Rutledge, Rodriguez, Mata and Manning
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as Defendants. See SAC at 1-3. Accordingly, those Defendants are DISMISSED from this
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action. King, 814 F.2d at 565.
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II.
SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
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The Prison Litigation Reform Act (“PLRA”)’s amendments to 28 U.S.C. § 1915 also
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obligate the Court to review complaints filed by all persons proceeding IFP and by those, like
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Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced for, or
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adjudicated delinquent for, violations of criminal law or the terms or conditions of parole,
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probation, pretrial release, or diversionary program,” “as soon as practicable after docketing.”
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See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these provisions, the Court must sua
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sponte dismiss any prisoner civil action and all other IFP complaints, or any portions thereof,
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which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who
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are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 11262
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27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir.
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2000) (§ 1915A).
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A.
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Plaintiff alleges that his due process rights were violated during his disciplinary hearing
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because several correctional officers falsified rules violation reports which led to Plaintiff being
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sentenced to Administrative Segregation (“Ad-Seg”). “The requirements of procedural due
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process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s
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protection of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569 (1972). State
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statutes and prison regulations may grant prisoners liberty interests sufficient to invoke due
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process protections. Meachum v. Fano, 427 U.S. 215, 223-27 (1976). However, the Supreme
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Court has significantly limited the instances in which due process can be invoked. Pursuant to
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Sandin v. Conner, 515 U.S. 472, 483 (1995), a prisoner can show a liberty interest under the
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Due Process Clause of the Fourteenth Amendment only if he alleges a change in confinement
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that imposes an “atypical and significant hardship . . . in relation to the ordinary incidents of
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prison life.” Id. at 484 (citations omitted); Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir.
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1997).
Fourteenth Amendment Due Process claims
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In this case, Plaintiff has failed to establish a liberty interest protected by the Constitution
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because he has not alleged, as he must under Sandin, facts related to the conditions or
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consequences of his placement in Ad-Seg which show “the type of atypical, significant
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deprivation [that] might conceivably create a liberty interest.” Id. at 486. For example, in
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Sandin, the Supreme Court considered three factors in determining whether the plaintiff
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possessed a liberty interest in avoiding disciplinary segregation: (1) the disciplinary versus
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discretionary nature of the segregation; (2) the restricted conditions of the prisoner’s
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confinement and whether they amounted to a “major disruption in his environment” when
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compared to those shared by prisoners in the general population; and (3) the possibility of
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whether the prisoner’s sentence was lengthened by his restricted custody. Id. at 486-87.
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Therefore, to establish a due process violation, Plaintiff must first show the deprivation
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imposed an atypical and significant hardship on him in relation to the ordinary incidents of
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prison life. Sandin, 515 U.S. at 483-84. Plaintiff has failed to allege any facts from which the
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Court could find there were atypical and significant hardships imposed upon him as a result of
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the Defendants’ actions. Plaintiff must allege “a dramatic departure from the basic conditions”
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of his confinement that would give rise to a liberty interest before he can claim a violation of due
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process. Id. at 485; see also Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996), amended
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by 135 F.3d 1318 (9th Cir. 1998). He has not; therefore the Court finds that Plaintiff has failed
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to allege a liberty interest in remaining free of Ad-seg, and thus, has failed to state a due process
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claim. See May, 109 F.3d at 565; Hewitt, 459 U.S. at 466; Sandin, 515 U.S. at 486 (holding that
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placing an inmate in administrative segregation for thirty days “did not present the type of
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atypical, significant deprivation in which a state might conceivably create a liberty interest.”).
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B.
Failure to protect claims
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The only claims against Defendants Edwards and Adams appear to be that they allegedly
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failed to protect him from the search and set him up to be falsely accused of having an inmate
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weapon. A “failure to protect claim” arises from the Eighth Amendment’s prohibition against
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cruel and unusual punishment requires that prison officials act reasonably in protecting inmates
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from violence suffered at the hands of other prisoners. Farmer, 511 U.S. at 833; Berg v.
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Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). However, to state a failure to protect claim,
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Plaintiff must allege facts sufficient to show that Defendants were “deliberately indifferent,” that
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they were aware of, but nevertheless consciously disregarded an excessive risk to his health or
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safety. Farmer, 511 U.S. at 834. Here, Plaintiff’s “injury” is not an excessive risk to his health
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or safety but rather an allegedly manufactured disciplinary charge that led to him spending time
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in Ad-Seg. Thus, Plaintiff has failed to state an Eighth Amendment claim, or any claim, against
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Defendants Edwards and Adams.
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C.
Religious claims
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Plaintiff also states that he is bringing a “Freedom of Religion” claim. (SAC at 4.)
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However, Plaintiff offers no other specific factual allegations nor does he clarify whether he
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intends to bring these claims under the First Amendment or pursuant to the Religious Land Use
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and Institutionalized Persons Act (“RLUIPA”).
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As to either Plaintiff’s potential First Amendment or RLUIPA claims, he fails to allege
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facts sufficient to state a claim. “The right to exercise religious practices and beliefs does not
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terminate at the prison door.” McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (per
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curiam). In order to implicate the Free Exercise Clause of the First Amendment, the Plaintiff
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must show that their belief is “sincerely held” and “rooted in religious belief.” See Shakur v.
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Schiro, 514 F.3d 878, 884 (citing Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994).
In addition to First Amendment protections, the Religious Land Use and Institutionalized
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Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et. seq., provides:
No government shall impose a substantial burden on the religious exercise
of a person residing in or confined to an institution . . . even if the burden results
from a rule of general applicability, unless the government demonstrates that
imposition of the burden on that person – [¶] (1) is in furtherance of a compelling
governmental interest; and [¶] (2) is the least restrictive means of furthering that
compelling governmental interest.
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42 U.S.C. § 2000cc-1(a) (emphasis added); see also San Jose Christian College v. Morgan Hill,
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360 F.3d 1024, 1033-34 (9th Cir. 2004) (“RLUIPA ‘replaces the void provisions of RFRA’ . . .
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and prohibits the government from imposing ‘substantial burdens’ on ‘religious exercise’ unless
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there exists a compelling governmental interest and the burden is the least restrictive means of
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satisfying the governmental interest.”).
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RLUIPA defines religious exercise to include “any exercise of religion, whether or not
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compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); San Jose
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Christian College, 360 F.3d at 1034. The party alleging a RLUIPA violation carries the initial
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burden of demonstrating that a governmental practice constitutes a substantial burden on his
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religious exercise. See 42 U.S.C. §§ 2000cc-1(a); 2000cc-2(b) (“[T]he plaintiff shall bear the
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burden of persuasion on whether the law (including a regulation) or government practice that
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is challenged by the claim substantially burdens the plaintiff’s exercise of religion.”).).Thus, the
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Court DISMISSES Plaintiff’s First Amendment religious claims and RLUIPA claims.
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D.
Access to Court claims
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Plaintiff also claims that he is bringing an access to courts claim without any additional
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factual allegations. (See SAC at 4.) Prisoners do “have a constitutional right to petition the
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government for redress of their grievances, which includes a reasonable right of access to the
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courts.” O’Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64
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F.3d 1276, 1279 (9th Cir. 1995). In Bounds, 430 U.S. at 817, the Supreme Court held that “the
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fundamental constitutional right of access to the courts requires prison authorities to assist
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inmates in the preparation and filing of meaningful legal papers by providing prisoners with
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adequate law libraries or adequate assistance from persons who are trained in the law.” Bounds
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v. Smith, 430 U.S. 817, 828 (1977). To establish a violation of the right to access to the courts,
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however, a prisoner must allege facts sufficient to show that: (1) a nonfrivolous legal attack on
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his conviction, sentence, or conditions of confinement has been frustrated or impeded, and (2)
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he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An
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“actual injury” is defined as “actual prejudice with respect to contemplated or existing litigation,
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such as the inability to meet a filing deadline or to present a claim.” Id. at 348; see also Vandelft
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v. Moses, 31 F.3d 794, 796 (9th Cir. 1994); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989);
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Keenan v. Hall, 83 F.3d 1083, 1093 (9th Cir. 1996).
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Here, Plaintiff has failed to alleged any actions with any particularity that have precluded
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his pursuit of a non-frivolous direct or collateral attack upon either his criminal conviction or
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sentence or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to
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access to the courts protects only an inmate’s need and ability to “attack [his] sentence[], directly
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or collaterally, and ... to challenge the conditions of [his] confinement.”); see also Christopher
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v. Harbury, 536 U.S. 403, 415 (2002) (the non-frivolous nature of the “underlying cause of
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action, whether anticipated or lost, is an element that must be described in the complaint, just
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as much as allegations must describe the official acts frustrating the litigation.”). Moreover,
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Plaintiff has not alleged facts sufficient to show that he has been actually injured by any specific
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defendant’s actions. Lewis, 518 U.S. at 351.
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In short, Plaintiff has not alleged that “a complaint he prepared was dismissed,” or that
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he was “so stymied” by any individual defendant’s actions that “he was unable to even file a
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complaint,” direct appeal or petition for writ of habeas corpus that was not “frivolous.” Lewis,
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518 U.S. at 351; Christopher, 536 U.S. at 416 (“like any other element of an access claim[,] ...
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the predicate claim [must] be described well enough to apply the ‘nonfrivolous’ test and to show
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that the ‘arguable’ nature of the underlying claim is more than hope.”). Therefore, Plaintiff’s
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access to courts claims must be dismissed for failing to state a claim.
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E.
Respondeat Superior
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Finally, Plaintiff continues to name Cate and Small as Defendants but fails to set forth
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sufficient factual allegations with regard to these Defendants in the body of Plaintiff’s Second
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Amended Complaint. Thus, it appears that Plaintiff seeks to hold these Defendants liable in
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their supervisory capacity. However, there is no respondeat superior liability under 42 U.S.C.
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§ 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, “[t]he inquiry into
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causation must be individualized and focus on the duties and responsibilities of each individual
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defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer
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v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71
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(1976)). In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each
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individual Defendant which have a direct causal connection to the constitutional violation at
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issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040,
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1045 (9th Cir. 1989).
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Supervisory prison officials may only be held liable for the allegedly unconstitutional
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violations of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what
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extent they personally participated in or directed a subordinate’s actions, and (2) in either acting
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or failing to act, they were an actual and proximate cause of the deprivation of Plaintiff’s
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constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded,
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however, Plaintiff’s First Amended Complaint fails to set forth facts which might be liberally
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construed to support an individualized constitutional claim against these Defendants.
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F.
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Remaining Defendants
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As for Defendants Rocha, Resler, Fregoso and Loya, the Court finds Plaintiff’s
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allegations against them sufficient to survive the sua sponte screening required by 28 U.S.C.
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§§ 1915(e)(2) and 1915A(b).1 See Lopez, 203 F.3d at 1126-27. Accordingly, the Court finds
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Plaintiff is entitled to U.S. Marshal service on his behalf. See 28 U.S.C. § 1915(d) (“The officers
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of the court shall issue and serve all process, and perform all duties in [IFP] cases.”);
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FED.R.CIV.P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal
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or deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C.
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§ 1915.”).
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III
CONCLUSION AND ORDER
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Good cause appearing, IT IS HEREBY ORDERED that:
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1.
Plaintiff’s Motion for Permission for Removal of Exhibits [ECF No. 20] is
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GRANTED. The Clerk of Court is directed to remove the Exhibits attached to Plaintiff’s
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original Complaint and re-attach these Exhibits to Plaintiff’s Second Amended Complaint.
2.
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Defendants Ochoa, Janda, Trujillo, Stratton, Beltran, Davis, Jimenez, Bettencourt,
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Garcia, Rutledge, Rodriguez, Mata and Manning are DISMISSED from this action. King, 814
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F.2d at 565.
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Plaintiff’s Fourteenth Amendment due process claims, Eighth Amendment failure
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to protect claims, access to courts claim and religious claims are DISMISSED for failing to state
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a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2) & § 1915A(b).
4.
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All claims against Defendants Small, Cate, Edwards and Adams are DISMISSED
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for failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2) &
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§ 1915A(b).
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Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of,
and not a substitute for, any subsequent Rule 12[] motion that [a defendant] may choose to bring.”
Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007).
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IT IS FURTHER ORDERED that:
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5.
The Clerk shall issue a summons as to Plaintiff’s Second Amended Complaint
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[ECF No. 18] and Exhibits upon Defendants Rocha, Resler, Fregoso and Loya and shall
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forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. In
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addition, the Clerk shall provide Plaintiff with a copy of this Order and a copy of his Second
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Amended Complaint, Exhibits and the summons so that he may serve Defendants. Upon receipt
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of this “IFP Package,” Plaintiff is directed to complete the Form 285s as completely and
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accurately as possible, and to return them to the United States Marshal according to the
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instructions provided by the Clerk in the letter accompanying his IFP package. Upon receipt,
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the U.S. Marshal shall serve a copy of the Second Amended Complaint, Exhibits and summons
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upon Defendants as directed by Plaintiff on the USM Form 285s. All costs of service shall be
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advanced by the United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3).
5.
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Defendants are thereafter ORDERED to reply to Plaintiff’s Second Amended
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Complaint within the time provided by the applicable provisions of Federal Rule of Civil
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Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted
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to “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or
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other correctional facility under section 1983,” once the Court has conducted its sua sponte
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screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary
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determination based on the face on the pleading alone that Plaintiff has a “reasonable
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opportunity to prevail on the merits,” the defendant is required to respond).
6.
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Plaintiff shall serve upon the Defendants or, if appearance has been entered by
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counsel, upon Defendants’ counsel, a copy of every further pleading or other document
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submitted for consideration of the Court. Plaintiff shall include with the original paper to be
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filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy
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of any document was served on Defendants, or counsel for Defendants, and the date of service.
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Any paper received by the Court which has not been filed with the Clerk or which fails to
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include a Certificate of Service will be disregarded.
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7.
Plaintiff shall not be limited in the amount of photocopies in this matter as the
Court has found them “necessary to advance litigation.” Cal.Regs. Title 15 § 3162(c).
IT IS SO ORDERED.
DATED: June 9, 2011
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Hon. Michael M. Anello
United States District Judge
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