Martin v. Harrinston et al

Filing 22

ORDER Sua Sponte Dismissing Second Amended Complaint for Failing to State a Claim. Signed by Judge Roger T. Benitez on 7/13/2015.(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LANCE R. MARTIN,
CDCR # E-17299,

Civil No.
Plaintiff,

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ORDER SUA SPONTE
DISMISSING SECOND AMENDED
COMPLAINT FOR FAILING TO
STATE A CLAIM PURSUANT
TO 28 U.S.C. § 1915(e)(2)(B)(ii)
AND 28 U.S.C. § 1915A(b)(1)

vs.

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T. HARRINSTON; L. MILLER;
C. OROZCO; CESCOLINI;
J. JUAREZ; S. MILLER;
HARRINGTON; ODELL,
Defendants.

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I.

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PROCEDURAL HISTORY
On December 8, 2014, Lance R. Martin (“Plaintiff”), a state prisoner currently

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incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, and

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proceeding pro se, filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C.

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§ 1983. Plaintiff did not prepay the $400 filing fee mandated by 28 U.S.C. § 1914(a);

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instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

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§ 1915(a) (ECF Doc. No. 2).

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The Court granted Plaintiff’s Motion to Proceed IFP and sua sponte dismissed his

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Complaint for failing to state a claim upon which relief could be granted pursuant to 28

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U.S.C. § 1915(e)(2) & § 1915A (ECF Doc. No. 3.) Plaintiff was granted leave to file an

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amended complaint in order to correct the deficiencies of pleading identified in the

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Court’s Order. (Id.) On February 17, 2015, Plaintiff filed his First Amended Complaint

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(“FAC”) and approximately one month later, Plaintiff filed supplemental exhibits to his

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FAC (ECF Doc. Nos. 14, 16.)

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The Court, once again, conducted the required sua sponte screening and found that

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Plaintiff had not corrected the deficiencies in his pleading previously identified by the

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Court. Thus, Plaintiff’s FAC was dismissed for failing to state a claim upon which relief

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could be granted on April 20, 2015. (ECF Doc. No. 17.) On May 20, 2015, Plaintiff

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filed his Second Amended Complaint (“SAC”) (ECF Doc. No. 21.)

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II.

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SUA SPONTE SCREENING PER 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b)

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A.

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As the Court previously informed Plaintiff, notwithstanding Plaintiff’s IFP status

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or the payment of any partial filing fees, the Prison Litigation Reform Act (“PLRA”)

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obligates the Court to review complaints filed by all persons proceeding IFP and by

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those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of,

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sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or

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conditions of parole, probation, pretrial release, or diversionary program,” “as soon as

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practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these

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statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which

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are frivolous, malicious, fail to state a claim, or which seek damages from defendants

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who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203

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F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621

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F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

Standard of Review

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All complaints must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining

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whether a complaint states a plausible claim for relief [is] . . . a context-specific task that

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requires the reviewing court to draw on its judicial experience and common sense.” Id.

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The “mere possibility of misconduct” falls short of meeting this plausibility standard.

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Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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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

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the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

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§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).

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However, while the court “ha[s] an obligation where the petitioner is pro se,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

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“supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents

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of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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B.

Access to Courts Claims

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Plaintiff continues to claim that Defendants have delayed in mailing confidential

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legal mail that he has submitted to them. Prisoners have a constitutional right to access

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to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). The right is limited to the filing

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of direct criminal appeals, habeas petitions, and civil rights actions. Id. at 354. Claims

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for denial of access to the courts may arise from the frustration or hindrance of “a
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litigating opportunity yet to be gained” (forward-looking access claim) or from the loss

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of a suit that cannot now be tried (backward-looking claim). Christopher v. Harbury,

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536 U.S. 403, 412-15 (2002); see also Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir.

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2011) (differentiating “between two types of access to court claims: those involving

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prisoners’ right to affirmative assistance and those involving prisoners’ rights to litigate

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without active interference.”).

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However, as this Court’s previous Order explained, a plaintiff must allege “actual

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injury” as the threshold requirement to any access to courts claim. See Lewis, 518 U.S.

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at 351-53; Silva, 658 F.3d at 1104. An “actual injury” is “actual prejudice with respect

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to contemplated or existing litigation, such as the inability to meet a filing deadline or

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to present a claim.” Lewis, 518 U.S. at 348; see also Jones v. Blanas, 393 F.3d 918, 936

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(9th Cir. 2004) (defining actual injury as the “inability to file a complaint or defend

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against a charge”). The failure to allege an actual injury is “fatal.” Alvarez v. Hill, 518

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F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to show that a ‘non-frivolous legal claim

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had been frustrated’ is fatal.”) (quoting Lewis, 518 U.S. at 353 & n.4).

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In addition, the prisoner must allege the loss of a “non-frivolous” or “arguable”

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underlying claim. See Harbury, 536 U.S. at 413-14. The nature and description of the

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underlying claim must be set forth in the pleading “as if it were being independently

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pursued.” Id. at 417. Finally, the plaintiff must specifically allege the “remedy that may

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be awarded as recompense but not otherwise available in some suit that may yet be

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brought.” Id. at 415.

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Plaintiff’s SAC fails to allege the actual injury required to state an access to courts

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claim. See Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. Specifically, he has

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failed to allege how the delay in the mailing of legal documents resulted in an “actual

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

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a filing deadline or to present a claim.” Lewis, 518 U.S. at 348; Jones, 393 F.3d at 936;

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Iqbal, 556 U.S. at 678. The basis of Plaintiff’s claim is the alleged failure to process his

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legal mail which consisted of a “‘proposed’ order to produce prisoner” for unspecified
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proceedings in San Diego Superior Court. (SAC at 11.) Even if Plaintiff was denied the

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right to personally appear by the state court, there are no allegations that Plaintiff had

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any action relating to his conditions of confinement or criminal proceedings dismissed

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due to the alleged delay in mailing documents by prison officials.

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In addition, once again, Plaintiff’s SAC also fails to identify or even nominally

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describe the non-frivolous or arguable nature of the underlying cause of action he either

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anticipated or lost as a result of Defendants’ actions. Harbury, 536 U.S. at 416 (“[L]ike

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any other element of an access claim[,] . . . the predicate claim [must] be described well

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enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the

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underlying claim is more than hope.”).

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For these reasons, the Court finds, once again, that Plaintiff’s access to courts

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claims must be dismissed for failing to state a plausible claim upon which § 1983 relief

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can be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678.

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C.

Legal Mail

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Throughout his SAC, Plaintiff also claims that Defendants tampered with his legal

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mail. The mail that he describes is mail that he sent to, or received from, various courts.

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However, while mail from his legal counsel can constitute “legal mail,” mail from the

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courts is not legal mail. See Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996).

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III.

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CONCLUSION AND ORDER

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For the reasons set forth above, the Court:

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DISMISSES this civil action without prejudice for failing to state a claim

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upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

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§ 1915A(b)(1).

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2.

DENIES Plaintiff leave to amend as futile. See Cahill v. Liberty Mut. Ins.

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Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of

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discretion where further amendment would be futile); see also Robinson v. Cal. Bd. of

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Prison Terms, 997 F. Supp. 1303, 1308 (C.D. Cal. 1998) (“Since plaintiff has not, and
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cannot, state a claim containing an arguable basis in law, this action should be dismissed

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without leave to amend; any amendment would be futile.”) (citing Newland v. Dalton,

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81 F.3d 904, 907 (9th Cir. 1996)).

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The Clerk of Court shall close the file.

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IT IS SO ORDERED.

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DATED: July 13, 2015

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Hon. Roger T. Benitez
United States District Judge

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