Rideau v. Velasco et al

Filing 6

ORDER DISMISSING First Amended Complaint without prejudice for failing to state a claim pursuant to 28 USC 1915(e)(2)(b) and 1915A(b). Plaintiff is granted 45 days leave from the date this Order is filed in which to file a Second Amended Complaint. (blank 1983 amended complaint form mailed to Plaintiff). Signed by Judge John A. Houston on 02/13/12.(All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GREGORY RIDEAU,
CDCR #K-32522,

Civil No.
Plaintiff,

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vs.

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J. VELASCO; GERALD J. JANDA; SILVIA
S. ROACHO; P. KUZIL-RUAN;
IRMA MARENO; SHERMAN RUTLEDGE
III; GABRIELA NUNEZ; J. CRIMAN;
G. TRUJILLO,

11cv2343 JAH (JMA)

ORDER DISMISSING FIRST
AMENDED COMPLAINT
WITHOUT PREJUDICE FOR
FAILING TO STATE A
CLAIM PURSUANT TO
28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b)

Defendant.

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I.

Procedural History

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On October 11, 2011, Gregory S. Rideau (“Plaintiff”), a state prisoner currently

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incarcerated at Calipatria State Prison located in Calipatria, California, and proceeding pro se,

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submitted a civil rights Complaint pursuant to 28 U.S.C. § 1983. In addition, Plaintiff filed a

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Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 2],

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along with a Motion to Appoint Counsel [ECF No. 3].

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11cv2343 JAH (JMA)

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On December 13, 2011, the Court granted Plaintiff’s Motion to Proceed IFP, denied his

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Motion for Appointment of Counsel and dismissed his Complaint for failing to state a claim

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upon which relief could be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b).

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See Dec. 13, 2011 Order at 7-8. Plaintiff was granted leave to file an Amended Complaint in

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order to correct the deficiencies of pleading identified by the Court. Id. On January 6, 2012,

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Plaintiff filed his First Amended Complaint (“FAC”).

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II.

Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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Notwithstanding payment of any filing fee or portion thereof, the Prison Litigation

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Reform Act (“PLRA”) requires courts to review complaints filed by prisoners against officers

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or employees of governmental entities and dismiss those or any portion of those found frivolous,

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malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief

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from a defendant immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez

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v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213

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F.3d 443, 446 (9th Cir. 2000) (§ 1915A).

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Prior to the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only

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frivolous and malicious claims.

Lopez, 203 F.3d at 1126, 1130.

However 28 U.S.C.

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§§ 1915(e)(2) and 1915A now mandate that the court reviewing a prisoner’s suit make and rule

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on its own motion to dismiss before directing that the complaint be served by the U.S. Marshal

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pursuant to FED. R. CIV. P. 4(c)(2). Id. at 1127 (“[S]ection 1915(e) not only permits, but requires

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a district court to dismiss an in forma pauperis complaint that fails to state a claim.”); Barren v.

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Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). The district court should grant leave to

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amend, however, unless it determines that “the pleading could not possibly be cured by the

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allegation of other facts” and if it appears “at all possible that the plaintiff can correct the

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defect.” Lopez, 203 F.3d at 1130-31 (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir.

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1995); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1990)).

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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)”). However, while liberal

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construction is “particularly important in civil rights cases,” Ferdik v. Bonzelet, 963 F.2d 1258,

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1261 (9th Cir. 1992), the court may nevertheless not “supply essential elements of the claim that

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

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(9th Cir. 1982).

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As currently pleaded, the Court finds that, once again, Plaintiff’s First Amended

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Complaint fails to state a cognizable claim under 42 U.S.C. § 1983. Section 1983 imposes two

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essential proof requirements upon a claimant: (1) that a person acting under color of state law

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committed the conduct at issue, and (2) that the conduct deprived the claimant of some right,

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privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C.

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§ 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v.

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Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985)

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(en banc).

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A.

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Plaintiff claims that Defendants conspired to prevent him from attending Court hearings

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that resulted in dismissal of his cases. (See FAC at 5.) 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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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

Access to Courts

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11cv2343 JAH (JMA)

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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.”); 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.”). Plaintiff was

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previously informed that he must describe the nature of the cases which appear to have occurred

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in Superior Court in the County of Imperial. (See FAC at 5.) In order for there to be an access

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to courts claim, Plaintiff must be able to show that these cases were related to his conditions of

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confinement or related to his criminal conviction. He fails to describe the underlying nature of

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these cases despite the Court’s previous Order informing him that he must do so. Plaintiff will

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only be given one final opportunity to amend these claims to meet the requirements of both

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Lewis and Christopher as set forth above.

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B.

Conspiracy claims

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Once again, Plaintiff also alleges that several correctional officers acted in a conspiracy

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to violate his constitutional rights pursuant to 42 U.S.C. § 1985(3). “To state a cause of action

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under § 1985(3), a complaint must allege (1) a conspiracy, (2) to deprive any person or a class

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of persons the equal protection of the laws, or of equal privileges and immunities under the laws,

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(3) an act by one of the conspirators in furtherance of the conspiracy, and (4) a personal injury,

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property damage or a deprivation of any right or privilege of a citizen of the United States.”

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Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980); see also Griffin v. Breckenridge, 403

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U.S. 88, 102-03 (1971); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992).

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“[T]he language requiring intent to deprive equal protection . . . means that there must be some

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racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the

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conspirators’ action.” Griffin, 403 U.S. at 102; see also Sever, 978 F.2d at 1536.

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Here, Plaintiff fails to allege membership in a protected class and fails to allege that any

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Defendant acted with class-based animus, both of which are essential elements of a cause of

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action under 42 U.S.C. § 1985(3). See Griffin, 403 U.S. at 101-02; Schultz v. Sundberg, 759

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F.2d 714, 718 (9th Cir. 1985) (holding that conspiracy plaintiff must show membership in a

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judicially-designated suspect or quasi-suspect class); Portman v. County of Santa Clara, 995

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F.2d 898, 909 (9th Cir. 1993).
C.

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Sixth Amendment claims

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Plaintiff claims that his Sixth Amendment rights have been violated but he fails to provide

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sufficient facts from which this Court could determine whether he has stated a claim. The Sixth

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Amendment, by its express language, “does not attach until a prosecution is commenced.”

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McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). Here, as stated above, Plaintiff fails to describe

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the nature of the cases involving the alleged violation of his Sixth Amendment rights.

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Accordingly, the Court must DISMISS Plaintiff’s First Amended Complaint for all the

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reasons set forth above but will provide Plaintiff with the opportunity to amend his Complaint

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to correct the deficiencies of pleading identified by the Court.

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III.

Conclusion and Order

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Good cause appearing, IT IS HEREBY ORDERED:

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Plaintiff’s First Amended Complaint is DISMISSED without prejudice pursuant

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to 28 U.S.C. §§ 1915(e)(2)(b) & 1915A. However, Plaintiff is GRANTED forty five (45) days

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leave from the date this Order is filed in which to file a Second Amended Complaint which cures

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all the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete

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in itself without reference to the superseded pleading. See S.D. CAL. CIVLR 15.1. Defendants

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not named and all claims not re-alleged in the Amended Complaint will be considered waived.

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See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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Complaint fails to state a claim upon which relief may be granted, it may be dismissed without

Further, if Plaintiff’s Amended

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further leave to amend and may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g).

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See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).

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The Clerk of Court is directed to mail a court approved § 1983 form complaint to

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Plaintiff.

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DATED: February 13, 2012

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_______________________________________
HON. JOHN A. HOUSTON
United States District Judge

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