Myers v. US Marshals Service

Filing 18

ORDER Dismissing First Amended Complaint without prejudice for failing to state a claim pursuant to 28 USC 1915(e)(2)(B) & 1915A(b). Plaintiff's motion 17 for Case Status is granted. Signed by Judge John A. Houston on 08/19/11. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM THOMAS MYERS,
CDCR #E-18846,

Civil No.
Plaintiff,

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ORDER DISMISSING FIRST
AMENDED COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C.
§§ 1915(e)(2)(B) & 1915A(b)

vs.
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10cv2662 JAH (JMA)

U.S. MARSHALS SERVICE,
Defendant.

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I.

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PROCEDURAL HISTORY

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On December 23, 2010, Plaintiff, William Thomas Myers, an inmate currently

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incarcerated at Calipatria State Prison located in Calipatria, California, filed a civil rights action

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pursuant to 42 U.S.C. § 1983. In addition, Plaintiff filed a Motion to Proceed In Forma

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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 4].

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On February 15, 2011, this Court granted Plaintiff’s Motion to Proceed IFP and sua

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sponte dismissed the Complaint for failing to state a claim pursuant to 28 U.S.C.

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§§ 1915(e)(2)(B) & 1915A(b). See Feb. 15, 2011 Order at 5-6. Plaintiff was granted leave to

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file an Amended Complaint in order to correct the deficiencies of pleading identified by the

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Court. Id. Plaintiff filed a motion for extension of time to amend his Complaint and he also

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filed a Notice of Appeal to the Ninth Circuit Court of Appeals. Plaintiff then filed his First

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Amended Complaint (“FAC”). On July 7, 2011, the Ninth Circuit Court of Appeals dismissed

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his appeal for lack of jurisdiction [ECF No. 16]. Plaintiff has now also filed a “Motion for Case

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Status Update.” The Court grants Plaintiff’s request to the extent that the Court issues the

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following Order dismissing Plaintiff’s action, once again, for failing to state a claim.

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II.

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SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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As the Court stated in its previous Order, the Prison Litigation Reform Act (“PLRA”)

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obligates 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) and 1915A(b). Under these provisions of the PLRA, the Court

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must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail

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to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§

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1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§

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1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A); see also Barren

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v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A).

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“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to the

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plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2)

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“parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s

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duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept.,

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839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a

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pro se civil rights complaint, the court may not “supply essential elements of claims that were

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not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th

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Cir. 1982). “Vague and conclusory allegations of official participation in civil rights violations

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are not sufficient to withstand a motion to dismiss.” Id.

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A.

Bivens Action

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Once again, Plaintiff has filed this action pursuant to 42 U.S.C. § 1983 but he names only

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a Federal actor as a Defendant. Accordingly, the Court will consider Plaintiff’s claims to arise

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under Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971). Bivens

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established that “compensable injury to a constitutionally protected interest [by federal officials

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alleged to have acted under color of federal law] could be vindicated by a suit for damages

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invoking the general federal question jurisdiction of the federal courts [pursuant to 28 U.S.C. §

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1331].” Butz v. Economou, 438 U.S. 478, 486 (1978). “Actions under § 1983 and those under

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Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor

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under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991).

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Bivens provides that “federal courts have the inherent authority to award damages against

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federal officials to compensate plaintiffs for violations of their constitutional rights.” Western

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Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000). However, a Bivens

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action may only be brought against the responsible federal official in his or her individual

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capacity. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988). Bivens does not

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authorize a suit against the government or its agencies for monetary relief. FDIC v. Meyer, 510

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U.S. 471, 486 (1994); Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988); Daly-

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Murphy, 837 F.2d at 355.

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B.

Access to Courts claim

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Plaintiff alleges that his access to the courts has been denied because the United States

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Marshals Service (“USMS”) has failed to properly serve Defendants in a separate action that

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Plaintiff has filed. See Myers v. Small, et al., S.D. Cal. Civil Case No. 08cv1810 JAH (WMc).

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Prisoners do “have a constitutional right to petition the government for redress of their

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grievances, which includes a reasonable right of access to the courts.” O’Keefe v. Van Boening,

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82 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995).

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In Bounds, 430 U.S. at 817, the Supreme Court held that “the fundamental constitutional right

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of access to the courts requires prison authorities to assist inmates in the preparation and filing

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of meaningful legal papers by providing prisoners with adequate law libraries or adequate

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assistance from persons who are trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977).

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To establish a violation of the right to access to the courts, however, a prisoner must allege facts

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sufficient to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions

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of confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a

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result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An “actual injury” is defined as “actual

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prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing

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deadline or to present a claim.” Id. at 348; see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir.

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1994); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall, 83 F.3d 1083, 1093

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(9th Cir. 1996).

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Here, however, Plaintiff cannot show the required “actual injury” because his action filed

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as Myers v. Small, et al., S.D. Cal. Civil Case No. 08cv1810 JAH (WMc) is still pending and has

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not been dismissed. As the Court previously informed Plaintiff, any issues regarding service

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with the USMS should be addressed in that matter rather than filing a separate action.

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Accordingly, the Court finds that Plaintiff has failed to allege facts sufficient to state an access

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to courts claim.

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III.

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CONCLUSION AND ORDER

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Good cause appearing therefor, IT IS HEREBY ORDERED that:

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1)

Plaintiff’s Motion for Case Status [ECF No. 17] is GRANTED.

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2)

Plaintiff’s First Amended Complaint [ECF No. 15] is DISMISSED without

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prejudice for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C.

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§ 1915(e)(2)(b) and § 1915A(b). Because Plaintiff has been provided an opportunity to correct

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the deficiencies of pleading, but still has failed to sufficiently state a claim, the Court finds

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further amendment would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th

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Cir. 1996) (denial of a leave to amend is not an abuse of discretion where further amendment

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would be futile); see also Robinson v. California Bd. of Prison Terms, 997 F. Supp. 1303, 1308

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(C.D. Cal. 1998) (“Since plaintiff has not, and cannot, state a claim containing an arguable basis

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in law, this action should be dismissed without leave to amend; any amendment would be

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futile.”) (citing Newland v. Dalton, 81 F.3d 904, 907 (9th Cir. 1996)).

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3)

IT IS FURTHER CERTIFIED that an IFP appeal from this final order of

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dismissal would not appear to be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). See

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Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th

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Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be

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frivolous).

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The Clerk shall close the file.
IT IS SO ORDERED.
DATED: August 19, 2011

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JOHN A. HOUSTON
United States District Judge

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