Rogers v. Giurbino et al
Filing
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ORDER (1) denying without prejudice 6 Plaintiff's Motion to Appoint Counsel; and (2) Dismissing without prejudice First Amended Complaint for Failure to State a Claim: Plaintiff is GRANTED 45 days leave from the date this Order is "Filed& quot; in which to file a Second Amended Complaint which cures all the deficiencies of pleading. The Clerk of Court is directed to mail a court approved form § 1983 complaint to Plaintiff. Signed by Judge Irma E. Gonzalez on 6/7/11. (All non-registered users served via U.S. Mail Service)(1983 form sent)(lmt)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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TYRONE ROGERS,
CDCR #V-35389,
Civil No.
Plaintiff,
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ORDER
(1) DENYING PLAINTIFF’S
REQUEST FOR APPOINTMENT
OF COUNSEL; and
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vs.
(2) DISMISSING FIRST AMENDED
COMPLAINT FOR FAILURE TO
STATE A CLAIM PURSUANT TO
28 U.S.C. §§ 1915(e)(2) AND 1915A(b)
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11cv0560 IEG (RBB)
G.J. GIURBINO; DOMINGO URIBE, Jr.;
KUZIL-RUAN; B. NARVIS;
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Defendants.
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I.
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PROCEDURAL HISTORY
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On March 21, 2011, Tyrone Rogers, a state prisoner currently incarcerated at Centinela
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State Prison located in Imperial, California, and proceeding pro se, submitted a civil action
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pursuant to 42 U.S.C. § 1983. Plaintiff also filed a Motion to Proceed In Forma Pauperis
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(“IFP”) pursuant to 28 U.S.C. § 1915(a), along with a Request for Appointment of Counsel. On
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April 20, 2011, the Court granted Plaintiff’s Motion to Proceed IFP, denied his Request for
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11cv0560 IEG (RBB)
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Appointment of Counsel and dismissed his Complaint for failing to state a claim pursuant to 28
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U.S.C. §§ 1915(e)(2) & 1915A(b). See Apr. 20, 2011 Order at 10-11. The Court granted
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Plaintiff leave to file an Amended Complaint in order to correct the deficiencies of pleading
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identified by the Court. Id. On May 31, 2011, Plaintiff filed his First Amended Complaint
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(“FAC”), along with a second Motion to Appoint Counsel.
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II.
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REQUEST FOR APPOINTMENT OF COUNSEL
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Once again, Plaintiff requests the appointment of counsel to assist him in prosecuting this
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civil action. The Constitution provides no right to appointment of counsel in a civil case,
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however, unless an indigent litigant may lose his physical liberty if he loses the litigation.
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Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. §
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1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. This
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discretion may be exercised only under “exceptional circumstances.” Terrell v. Brewer, 935
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F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation
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of both the ‘likelihood of success on the merits and the ability of the plaintiff to articulate his
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claims pro se in light of the complexity of the legal issues involved.’ Neither of these issues is
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dispositive and both must be viewed together before reaching a decision.” Id. (quoting Wilborn
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v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
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The Court denies Plaintiff’s request without prejudice, as neither the interests of justice
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nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley,
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827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.
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III.
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SUA SPONTE SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1)
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As the Court stated in its previous Order, notwithstanding IFP status or the payment of
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any partial filing fees, the Court must subject each civil action commenced pursuant to 28 U.S.C.
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§ 1915(a) to mandatory screening and order the sua sponte dismissal of any case it finds
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“frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking
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monetary relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B);
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11cv0560 IEG (RBB)
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Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C.
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§ 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.
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2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to
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sua sponte dismiss an in forma pauperis complaint that fails to state a claim).
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Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte
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dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as
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amended, 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to
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the IFP provisions of section 1915 make and rule on its own motion to dismiss before directing
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the U.S. Marshal to effect service pursuant to FED.R.CIV.P. 4(c)(3). See Calhoun, 254 F.3d at
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845; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir.
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1997) (stating that sua sponte screening pursuant to § 1915 should occur “before service of
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process is made on the opposing parties”).
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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 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren, 152 F.3d at 1194
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(noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”);
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Andrews, 398 F.3d at 1121. In addition, the Court has a duty to liberally construe a pro se’s
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pleadings, see Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988),
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which is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261
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(9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the
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court may not “supply essential elements of claims that were not initially pled.” Ivey v. Board
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of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
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Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person
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acting under color of state law committed the conduct at issue, and (2) that the conduct deprived
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the claimant of some right, privilege, or immunity protected by the Constitution or laws of the
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United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122
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(2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).
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11cv0560 IEG (RBB)
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While Plaintiff may have alleged facts sufficient to survive the sua sponte screening
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process as to his religious claims, he has failed to allege facts sufficient to state a claim as to the
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other alleged constitutional violations.
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B.
Outdoor Exercise claims
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Plaintiff appears to allege that he was denied outdoor exercise for a period of
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approximately ten days on three separate occasions. (See FAC at 5.) “Whatever rights one may
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lose at the prison gates, ... the full protections of the eighth amendment most certainly remain
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in force. The whole point of the amendment is to protect persons convicted of crimes.” Spain
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v. Procunier, 600 F.2d 189, 193-94 (9th Cir. 1979) (citation omitted). The Eighth Amendment,
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however, is not a basis for broad prison reform. It requires neither that prisons be comfortable
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nor that they provide every amenity that one might find desirable. Rhodes v. Chapman, 452 U.S.
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337, 347, 349 (1981); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1981). Rather, the Eighth
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Amendment proscribes the “unnecessary and wanton infliction of pain,” which includes those
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sanctions that are “so totally without penological justification that it results in the gratuitous
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infliction of suffering.” Gregg v. Georgia, 428 U.S. 153, 173, 183 (1976); see also Farmer v.
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Brennan, 511 U.S. 825, 834 (1994); Rhodes, 452 U.S. at 347. This includes not only physical
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torture, but any punishment incompatible with “the evolving standards of decency that mark the
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progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958); see also Estelle v.
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Gamble, 429 U.S. 97, 102 (1976).
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To assert an Eighth Amendment claim for deprivation of humane conditions of
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confinement, a prisoner must satisfy two requirements: one objective and one subjective.
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Farmer, 511 U.S. at 834; Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994). “Under the
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objective requirement, the prison official’s acts or omissions must deprive an inmate of the
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minimal civilized measure of life’s necessities.” Id. This objective component is satisfied so
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long as the institution “furnishes sentenced prisoners with adequate food, clothing, shelter,
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sanitation, medical care, and personal safety.” Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.
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1982); Farmer, 511 U.S. at 833; Wright v. Rushen, 642 f.2d 1129, 1132-33 (9th Cir. 1981).
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11cv0560 IEG (RBB)
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The subjective requirement, relating to the defendants’ state of mind, requires “deliberate
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indifference.” Allen, 48 F.3d at 1087. “Deliberate indifference” exists when a prison official
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“knows of and disregards an excessive risk to inmate health and safety; the official must be both
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aware of facts from which the inference could be drawn that a substantial risk of serious harm
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exists, and he must also draw the inference.” Farmer, 511 U.S. at 835. Finally, the Court must
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analyze each claimed violation in light of these requirements, for Eighth Amendment violations
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may not be based on the “totality of conditions” at a prison. Hoptowit, 682 F.2d at 246-47;
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Wright, 642 F.2d at 1132.
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In Spain, the court stated that “regular outdoor exercise is extremely important to the
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psychological and physical well being of the inmates.” Spain, 600 F.2d at 199. A temporary
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denial of outdoor exercise would not necessarily rise to the level of a constitutional violation.
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See Lopez v, 203 F.3d at 1122 (complete denial of outdoor recreation for six and one half weeks
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was sufficient to satisfy the objective requirement). Here, as the Court stated in its previous
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Order, it appears that the deprivation of outdoor exercise only lasted for a few days. Thus, the
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Court finds that Plaintiff has failed to allege facts sufficient to state an Eighth Amendment claim.
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C.
Access to Courts
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Plaintiff alleges that he was denied access to the courts when his request for law library
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access was rejected. (See FAC 5.) As a result, his petition for writ of habeas corpus pending at
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the Ninth Circuit Court of Appeals was denied. (Id.) Prisoners do “have a constitutional right
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to petition the government for redress of their grievances, which includes a reasonable right of
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access to the courts.” O’Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); accord Bradley
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v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). In Bounds, 430 U.S. at 817, the Supreme Court held
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that “the fundamental constitutional right of access to the courts requires prison authorities to
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assist inmates in the preparation and filing of meaningful legal papers by providing prisoners
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with adequate law libraries or adequate assistance from persons who are trained in the law.”
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Bounds v. Smith, 430 U.S. 817, 828 (1977). To establish a violation of the right to access to the
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courts, however, a prisoner must allege facts sufficient to show that: (1) a nonfrivolous legal
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attack on his conviction, sentence, or conditions of confinement has been frustrated or impeded,
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11cv0560 IEG (RBB)
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and (2) he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996).
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An “actual injury” is defined as “actual prejudice with respect to contemplated or existing
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litigation, such as the inability to meet a filing deadline or to present a claim.” Id. at 348; see
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also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 1994); Sands v. Lewis, 886 F.2d 1166, 1171
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(9th Cir. 1989); 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.”). In addition, Plaintiff
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must also describe the non-frivolous nature of the “underlying cause of action, whether
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anticipated or lost.” Christopher v. Harbury, 536 U.S. 403, 415 (2002) .
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A court “may take notice of proceedings in other courts, both within and without the
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federal judicial system, if those proceedings have a direct relation to matters at issue.” United
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States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.
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1992). Here, Plaintiff states that his access to courts claim is premised on an action he filed in
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the Ninth Circuit Court of Appeals. (See FAC at 5.) Plaintiff refers to his petition for writ of
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habeas corpus filed in Rogers v. Giurbino, No. 07-56731 (9th Cir. 2007). In that action, on
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September 18, 2008, an Order was entered in which Plaintiff’s “request for rehearing en banc”
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was denied and the Order stated “[n]o further filings shall be accepted in this closed case.” Id.,
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(Order dated Sept. 18, 2008). Plaintiff claims in his First Amended Complaint that the rejection
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of law library access in 2010 somehow impacted this matter which the Ninth Circuit closed in
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2008 and prohibited Plaintiff from any further filings. Plaintiff cannot show that his attempts
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to file additional claims in this closed case is “non-frivolous” and therefore, he cannot state an
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access to courts claim. Christopher, 536 U.S. at 415.
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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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11cv0560 IEG (RBB)
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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 upon which section 1983
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relief can be granted without leave to amend. See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d
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at 446.
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Accordingly, the Court finds that Plaintiff’s outdoor exercise claims and access to courts
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claims fail to state a section 1983 claim upon which relief may be granted, and is therefore
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subject to dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). The Court will provide
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Plaintiff with an opportunity to amend his pleading to cure the defects set forth above. Plaintiff
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can attempt to allege facts to overcome the deficiencies of pleadings with regard to his Eighth
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Amendment claims and re-allege his religious claims by filing a Second Amended Complaint.
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Plaintiff may also choose to file a Second Amended Complaint containing only his claims which
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the Court has found survive the sua sponte screening process.
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IV.
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CONCLUSION AND ORDER
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Good cause appearing, IT IS HEREBY ORDERED that:
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1.
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IT IS FURTHER ORDERED that:
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2.
Plaintiff’s request for appointment of counsel is DENIED without prejudice.
Plaintiff’s First Amended Complaint is DISMISSED without prejudice pursuant
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to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45)
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days leave from the date this Order is “Filed” in which to file a Second Amended Complaint
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which cures all the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must
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be complete in itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1.
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Defendants not named and all claims not re-alleged in the Amended Complaint will be deemed
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to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
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11cv0560 IEG (RBB)
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Further, if Plaintiff’s Amended Complaint fails to state a claim upon which relief may
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be granted, it may be dismissed without further leave to amend and may hereafter be counted
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as a “strike” under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir.
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1996).
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3.
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Plaintiff.
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The Clerk of Court is directed to mail a court approved form § 1983 complaint to
IT IS SO ORDERED.
6/7/11
DATED: _______________________
_________________________________________
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HON. IRMA E. GONZALEZ, Chief Judge
United States District Court
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