Rogers et al v. Giurbino et al

Filing 5

ORDER: (1) Severing Claims and Parties Pursuant to Fed.R.Civ.P.21; (2) Denying Motion for Appointment of Counsel [ECF No. 3]; (3) Granting Plaintiff Rogers' Motion to Proceed In Forma Pauperis [ECF No. 4]; and (4) Dismissing Action Purus ant to 28 U.S.C. §§ 1915(e)(2) & 1915A. The claims brought by Plaintiff Lopez are severed from this action pursuant to FED.R.CIV.P. 21. Plaintiff Rogers shall proceed as the sole Plaintiff in this action. Plaintiff's Complaint is dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is granted forty five (45) days leave from the date this Order is "Filed" in which to file a First Amended Complaint which cures all the def iciencies of pleading noted above. (Order electronically transmitted to Matthew Cate, Secretary CDCR). Signed by Judge Barry Ted Moskowitz on 5/17/11. (All non-registered users served via U.S. Mail Service. Mailed Petitioner a form § 1983 complaint.)(jer)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TYRONE ROGERS,
CDCR #CV-35389;
MICHAEL ANTHONY LOPEZ,
CDCR #H-30604

Civil No.

Plaintiffs,

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(2) DENYING MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 3];

vs.

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ORDER:
(1) SEVERING CLAIMS AND PARTIES
PURSUANT TO FED.R.CIV.P. 21;

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(3) GRANTING PLAINTIFF
ROGERS’ MOTION TO PROCEED
IN FORMA PAUPERIS [ECF No. 4],

G.J. GIURBINO, URIBE DOMINGO, JR.;
N. GRANNIS; M. HODGES; DENNIS
BROWN; ALICIA GARCIA; L. KASTNER;
M. AYALA; B. NARVIS; D. FOSTON,

AND
(4) DISMISSING ACTION PURSUANT
TO 28 U.S.C. §§ 1915(e)(2) & 1915A

Defendants.

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Plaintiffs, both inmates currently incarcerated at the Centinela State Prison, and
proceeding pro se, have filed a civil action pursuant to 42 U.S.C. § 1983. Plaintiffs have also
have filed Motions to Proceed In Forma Pauperis (“IFP”), along with a Motion to Appoint
Counsel.
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I.

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FEDERAL RULE OF CIVIL PROCEDURE 21

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As an initial matter, the Court notes that this action has been filed by two separate

4 Plaintiffs who are currently incarcerated in the same institution. It is often the case during the
5 course of litigation filed by those who are incarcerated, that a plaintiff will transfer to different
6 institutions. If Plaintiffs were to be separated, which is a high probability, they would not be
7 able to represent the interests of the other party. Because Plaintiffs are proceeding pro se, they
8 have no authority to represent the legal interest of any other party. See Cato v. United States,
9 70 F.3d 1103, 1105 n.1 (9th Cir. 1995); C.E. Pope Equity Trust v. United States, 818 F.2d 696,
10 697 (9th Cir. 1987); see also FED.R.CIV.P. 11(a) (“Every pleading, written motion, and other
11 paper shall be signed by at least one attorney of record in the attorney’s original name, or if the
12 party is not represented by an attorney, shall be signed by the party.”). Thus, to attempt to
13 litigate this action together in one action would lead to a great deal of procedural confusion and
14 likely result in significant delays. Thus, the Court severs the claims brought by Plaintiff Lopez
15 from this action pursuant to FED.R.CIV.P. 21.
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The Court will permit Plaintiff Rogers to proceed in this action and directs the Clerk of

17 Court to open a new action with the Complaint [ECF No. 1], along with Plaintiff Lopez’s Motion
18 to Proceed IFP [ECF No. 2].
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II.

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MOTION TO PROCEED IFP [ECF No. 2]

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All parties instituting any civil action, suit or proceeding in a district court of the United

22 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28
23 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee
24 only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See
25 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to
26 proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their
27 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d
28 844, 847 (9th Cir. 2002).
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The Court finds that Plaintiff has no available funds from which to pay filing fees at this

2 time. See 28 U.S.C. § 1915(b)(4). Therefore, the Court GRANTS Plaintiff’s Motion to Proceed
3 IFP [ECF No. 4] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However,
4 the entire $350 balance of the filing fees mandated shall be collected and forwarded to the Clerk
5 of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
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III.

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INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1)

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Notwithstanding IFP status or the payment of any partial filing fees, the Court must

9 subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening
10 and order the sua sponte dismissal of any case it finds “frivolous, malicious, failing to state a
11 claim upon which relief may be granted, or seeking monetary relief from a defendant immune
12 from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir.
13 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v.
14 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). “[W]hen determining whether a
15 complaint states a claim, a court must accept as true all allegations of material fact and must
16 construe those facts in the light most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443,
17 447 (9th Cir. 2000).
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Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person

19 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived
20 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the
21 United States. See 42 U.S.C. § 1983.
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A.

Legal Mail

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Plaintiff’s allegations are far from clear. However, Plaintiff alleges that he was “denied

24 opportunity to receive legal mail at Centinela State Prison” on July 11, 2007. (Compl. at 4.)
25 Plaintiff fails to identify the party whom he claims is directly responsible for this alleged denial.
26 In his Complaint, Plaintiff refers to the Petition for Writ of Habeas Corpus challenging his
27 underlying criminal conviction that he filed in Rogers v. Giurbino, et al., 06cv2549 H (NLS).
28 A court “may take notice of proceedings in other courts, both within and without the federal
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1 judicial system, if those proceedings have a direct relation to matters at issue.” United States
2 ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
3 In this matter, District Judge Marilyn Huff denied Plaintiff’s Petition on July 11, 2007 which is
4 apparently the legal mail Plaintiff claims he was “denied the opportunity to receive.” (Compl.
5 at 4.) However, Plaintiff cannot state a claim on the basis that he did not receive mail from the
6 Courts. See Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996) (“Mail from the courts, as
7 contrasted to mail from a prisoner’s lawyer, is not legal mail.”)
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B.

Access to Courts

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Plaintiff also appears to claim that he was denied adequate access to the courts. In

10 Bounds, 430 U.S. at 817, the Supreme Court held that “the fundamental constitutional right of
11 access to the courts requires prison authorities to assist inmates in the preparation and filing of
12 meaningful legal papers by providing prisoners with adequate law libraries or adequate
13 assistance from persons who are trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977).
14 To establish a violation of the right to access to the courts, however, a prisoner must allege facts
15 sufficient to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions
16 of confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a
17 result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An “actual injury” is defined as “actual
18 prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing
19 deadline or to present a claim.” Id. at 348.
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Here, Plaintiff first describes three separate actions he filed in the Southern District of

21 California in which he filed Petitions for Writ of Habeas Corpus challenging his underlying
22 criminal conviction. The first Petition, as stated above, was denied by the Court on July 11,
23 2007 (See Rogers v. Giurbino, et al. 06cv2549 H (NLS) July 11, 2007 Order Adopting Report
24 and Recommendation and Denying Petition for Writ of Habeas Corpus). Plaintiff does not
25 allege that any of the named Defendants interfered with his ability to litigate that matter. In fact,
26 the Court notes that Plaintiff filed objections to the Magistrate Judge’s Report and
27 Recommendation and was able to file a Notice of Appeal.
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The second Petition was filed in Rogers v. Giurbino, et al., 07cv1839 H (PCL). In that

2 matter, District Judge Huff dismissed Plaintiff’s petition without prejudice finding that it was
3 second or successive to the petition Plaintiff filed in 2006. Plaintiff was instructed to submit a
4 form application, which was provided, to the Ninth Circuit Court of Appeals seeking leave to
5 file a second or successive petition. (See Rogers v. Giurbino, et al., 07cv1839 H (PCL) Order
6 Adopting Report and Recommendation and Dismissing, without prejudice, Petition for Writ of
7 Habeas Corpus dated Mar. 10, 2008).
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Plaintiff does not claim that any of the named Defendants interfered with his litigation

9 of the matter filed in 2007. Plaintiff does not state in his Complaint whether he filed this form
10 application with the Ninth Circuit, instead Plaintiff alleges that on January 3, 2009 he “filed the
11 unexhausted claim in the San Diego Superior Court concerning the denial of this Court’s 7-1112 07, case no. 06-CV-2549.” (Compl. at 5.) Plaintiff then filed a petition with the California
13 Supreme Court on July 30, 2009 which was denied on December 28, 2009. (Id.)
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Plaintiff’s claims he was denied access to the Courts on February 26, 2010 because he

15 was not permitted access to the law library to research the denial of his petition by the California
16 Supreme Court. (Id.) Plaintiff was then able to file his third petition challenging his underlying
17 criminal conviction in the Southern District on March 30, 2010. Once again, Plaintiff’s petition
18 was dismissed as second or successive. Plaintiff was again told that he must obtain an order
19 from the Ninth Circuit Court of Appeals granting him permission to file a second or successive
20 petition and he was supplied with the necessary form. (See Rogers v. Domingo, et al., 10cv0707
21 MMA (BLM) Summary Dismissal of Successive Petition Pursuant to 28 U.S.C. § 2244(b)(3)(A)
22 Gatekeeper Provision dated Apr. 26, 2010). Plaintiff’s second claim that he was denied access
23 comes after this dismissal was filed whereby he claims that he was denied access to the law
24 library on May 6, 2010 to research filing a “writ of habeas corpus (brief) to the United States
25 Ninth Circuit Court, FRAP 31(a)(1).” (Compl. at 5.)
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While not entirely clear, it appears that Plaintiff claims the Ninth Circuit Court of Appeals

27 rejected his attempts to file his second or successive petition because of a lack of “diligence”
28 caused by prison officials refusal to allow him to use the law library in 2010. (Id. at 5-6.)
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1 However, a review of Plaintiff’s filings with the Ninth Circuit Court of Appeal demonstrate that
2 Plaintiff filed an application for leave to file a second or successive petition on November 28,
3 2007. See Rogers v. Almager, et al., No. 07-74653 (9th Cir. Nov. 29, 2007). This application
4 was denied by the Ninth Circuit Court of Appeals on January 15, 2008, well before Plaintiff’s
5 claims that he was denied access to the prison’s law library.
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Thus, the Court finds that Plaintiff has failed to alleged any actions with any particularity

7 that have precluded his pursuit of a non-frivolous direct or collateral attack upon either his
8 criminal conviction or sentence or the conditions of his current confinement. See Lewis, 518
9 U.S. at 355 (right to access to the courts protects only an inmate’s need and ability to “attack
10 [his] sentence[], directly or collaterally, and ... to challenge the conditions of [his]
11 confinement.”); see also Christopher v. Harbury, 536 U.S. 403, 415 (2002) (the non-frivolous
12 nature of the “underlying cause of action, whether anticipated or lost, is an element that must be
13 described in the complaint, just as much as allegations must describe the official acts frustrating
14 the litigation.”). Therefore, the Court finds that Plaintiff has failed to state an access to courts
15 claim.
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IV.

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CONCLUSION AND ORDER

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For the reasons set forth above, IT IS ORDERED that:

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(1)

The claims brought by Plaintiff Lopez are severed from this action pursuant to

20 FED.R.CIV.P. 21. Plaintiff Rogers shall proceed as the sole Plaintiff in this action.
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(2)

The Clerk of Court is directed to open a new civil action with the Complaint [ECF

22 No. 1] with Michael Anthony Lopez as the Plaintiff and file Lopez’ Motion to Proceed IFP
23 [ECF No. 2], along with his Motion to Appoint Counsel [ECF No. 3] in the separate action.
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IT IS FURTHER ORDERED that:

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(3)

Plaintiff Rogers Motion to Appoint Counsel is DENIED without prejudice.

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(4)

Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 3] is

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(5)

The Secretary of California Department of Corrections and Rehabilitation, or his

2 designee, shall collect from Plaintiff Rogers’ prison trust account the $350 balance of the filing
3 fee owed in this case by collecting monthly payments from the account in an amount equal to
4 twenty percent (20%) of the preceding month’s income and forward payments to the Clerk of
5 the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C.
6 § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND
7 NUMBER ASSIGNED TO THIS ACTION.
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(6)

The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate,

9 Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502,
10 Sacramento, California 95814.
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IT IS FURTHER ORDERED that:

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(7)

Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C.

13 §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave
14 from the date this Order is “Filed” in which to file a First Amended Complaint which cures all
15 the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete in
16 itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants
17 not named and all claims not re-alleged in the Amended Complaint will be deemed to have been
18 waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
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(8)

The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff.

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IT IS SO ORDERED.

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DATED: May 17, 2011

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Honorable Barry Ted Moskowitz
United States District Judge

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