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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 WILLIAM THOMAS MYERS, CDCR #E-18846, Civil No. Plaintiff, 13 ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) vs. 14 15 10cv2662 JAH (JMA) U.S. MARSHALS SERVICE, Defendant. 16 17 18 I. 19 PROCEDURAL HISTORY 20 On December 23, 2010, Plaintiff, William Thomas Myers, an inmate currently 21 incarcerated at Calipatria State Prison located in Calipatria, California, filed a civil rights action 22 pursuant to 42 U.S.C. § 1983. In addition, Plaintiff filed a Motion to Proceed In Forma 23 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 4]. 24 On February 15, 2011, this Court granted Plaintiff’s Motion to Proceed IFP and sua 25 sponte dismissed the Complaint for failing to state a claim pursuant to 28 U.S.C. 26 §§ 1915(e)(2)(B) & 1915A(b). See Feb. 15, 2011 Order at 5-6. Plaintiff was granted leave to 27 file an Amended Complaint in order to correct the deficiencies of pleading identified by the 28 Court. Id. Plaintiff filed a motion for extension of time to amend his Complaint and he also K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\10cv2662-Dismiss FAC.wpd -1- 10cv2662 JAH (JMA) 1 filed a Notice of Appeal to the Ninth Circuit Court of Appeals. Plaintiff then filed his First 2 Amended Complaint (“FAC”). On July 7, 2011, the Ninth Circuit Court of Appeals dismissed 3 his appeal for lack of jurisdiction [ECF No. 16]. Plaintiff has now also filed a “Motion for Case 4 Status Update.” The Court grants Plaintiff’s request to the extent that the Court issues the 5 following Order dismissing Plaintiff’s action, once again, for failing to state a claim. 6 II. 7 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 8 As the Court stated in its previous Order, the Prison Litigation Reform Act (“PLRA”) 9 obligates the Court to review complaints filed by all persons proceeding IFP and by those, like 10 Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced for, or 11 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, 12 probation, pretrial release, or diversionary program,” “as soon as practicable after docketing.” 13 See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court 14 must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail 15 to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 16 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 17 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A); see also Barren 18 v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A). 19 “[W]hen determining whether a complaint states a claim, a court must accept as true all 20 allegations of material fact and must construe those facts in the light most favorable to the 21 plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 22 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s 23 duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept., 24 839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v. 25 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a 26 pro se civil rights complaint, the court may not “supply essential elements of claims that were 27 not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th 28 K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\10cv2662-Dismiss FAC.wpd -2- 10cv2662 JAH (JMA) 1 Cir. 1982). “Vague and conclusory allegations of official participation in civil rights violations 2 are not sufficient to withstand a motion to dismiss.” Id. 3 A. Bivens Action 4 Once again, Plaintiff has filed this action pursuant to 42 U.S.C. § 1983 but he names only 5 a Federal actor as a Defendant. Accordingly, the Court will consider Plaintiff’s claims to arise 6 under Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971). Bivens 7 established that “compensable injury to a constitutionally protected interest [by federal officials 8 alleged to have acted under color of federal law] could be vindicated by a suit for damages 9 invoking the general federal question jurisdiction of the federal courts [pursuant to 28 U.S.C. § 10 1331].” Butz v. Economou, 438 U.S. 478, 486 (1978). “Actions under § 1983 and those under 11 Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor 12 under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). 13 Bivens provides that “federal courts have the inherent authority to award damages against 14 federal officials to compensate plaintiffs for violations of their constitutional rights.” Western 15 Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000). However, a Bivens 16 action may only be brought against the responsible federal official in his or her individual 17 capacity. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988). Bivens does not 18 authorize a suit against the government or its agencies for monetary relief. FDIC v. Meyer, 510 19 U.S. 471, 486 (1994); Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988); Daly- 20 Murphy, 837 F.2d at 355. 21 B. Access to Courts claim 22 Plaintiff alleges that his access to the courts has been denied because the United States 23 Marshals Service (“USMS”) has failed to properly serve Defendants in a separate action that 24 Plaintiff has filed. See Myers v. Small, et al., S.D. Cal. Civil Case No. 08cv1810 JAH (WMc). 25 Prisoners do “have a constitutional right to petition the government for redress of their 26 grievances, which includes a reasonable right of access to the courts.” O’Keefe v. Van Boening, 27 82 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). 28 In Bounds, 430 U.S. at 817, the Supreme Court held that “the fundamental constitutional right K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\10cv2662-Dismiss FAC.wpd -3- 10cv2662 JAH (JMA) 1 of access to the courts requires prison authorities to assist inmates in the preparation and filing 2 of meaningful legal papers by providing prisoners with adequate law libraries or adequate 3 assistance from persons who are trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977). 4 To establish a violation of the right to access to the courts, however, a prisoner must allege facts 5 sufficient to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions 6 of confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a 7 result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An “actual injury” is defined as “actual 8 prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing 9 deadline or to present a claim.” Id. at 348; see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 10 1994); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall, 83 F.3d 1083, 1093 11 (9th Cir. 1996). 12 Here, however, Plaintiff cannot show the required “actual injury” because his action filed 13 as Myers v. Small, et al., S.D. Cal. Civil Case No. 08cv1810 JAH (WMc) is still pending and has 14 not been dismissed. As the Court previously informed Plaintiff, any issues regarding service 15 with the USMS should be addressed in that matter rather than filing a separate action. 16 Accordingly, the Court finds that Plaintiff has failed to allege facts sufficient to state an access 17 to courts claim. 18 III. 19 CONCLUSION AND ORDER 20 Good cause appearing therefor, IT IS HEREBY ORDERED that: 21 1) Plaintiff’s Motion for Case Status [ECF No. 17] is GRANTED. 22 2) Plaintiff’s First Amended Complaint [ECF No. 15] is DISMISSED without 23 prejudice for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. 24 § 1915(e)(2)(b) and § 1915A(b). Because Plaintiff has been provided an opportunity to correct 25 the deficiencies of pleading, but still has failed to sufficiently state a claim, the Court finds 26 further amendment would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th 27 Cir. 1996) (denial of a leave to amend is not an abuse of discretion where further amendment 28 would be futile); see also Robinson v. California Bd. of Prison Terms, 997 F. Supp. 1303, 1308 K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\10cv2662-Dismiss FAC.wpd -4- 10cv2662 JAH (JMA) 1 (C.D. Cal. 1998) (“Since plaintiff has not, and cannot, state a claim containing an arguable basis 2 in law, this action should be dismissed without leave to amend; any amendment would be 3 futile.”) (citing Newland v. Dalton, 81 F.3d 904, 907 (9th Cir. 1996)). 4 3) IT IS FURTHER CERTIFIED that an IFP appeal from this final order of 5 dismissal would not appear to be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). See 6 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th 7 Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be 8 frivolous). 9 10 11 The Clerk shall close the file. IT IS SO ORDERED. DATED: August 19, 2011 12 JOHN A. HOUSTON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\10cv2662-Dismiss FAC.wpd -5- 10cv2662 JAH (JMA)

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