Wallace v. Olivarria et al

Filing 25

ORDER denying Plaintiff's 22 Motion to Appoint Counsel. Court dismisses Plaintiff's Second Amended Complaint for failing to state a claim upon which 1983 relief may be granted pursuant to 28 USC 1915(e)(2) and 1915A(b). Court denies Plai ntiff further leave to amend as futile. Court certifies that an appeal for this final Order of dismissal would be frivolous, and therefore, not taken in good faith pursuant to 28 USC 1915(a)(3). Clerk is directed to terminate this civil action and close the file. Signed by Judge Cynthia Bashant on 2/8/2017. (All non-registered users served via U.S. Mail Service) (jah)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 TYRONE WALLACE, CDCR #P48941, 11 12 Case No. 16-cv-01808-BAS-PCL ORDER: Plaintiff, 13 (1) DENYING MOTION FOR APPOINTMENT OF COUNSEL [ECF No. 22] v. 14 R. OLIVARRIA; B. SELF; R. ARMENDARIZ; J. MCNEIL; D. ARGUILEZ, 15 16 AND (2) DISMISSING SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM Defendants. 17 18 19 20 21 Plaintiff Tyrone Wallace, a state prisoner incarcerated at Richard J. Donovan 22 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this 23 case brought under 42 U.S.C. § 1983. 24 I. Procedural History 25 On October 21, 2016, the Court granted Plaintiff leave to proceed in forma 26 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), but simultaneously denied his 27 Motion for Appointment of Counsel and dismissed his First Amended Complaint sua 28 sponte pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) for failing to state a claim. –1– 16cv1808 1 (ECF No. 19). The Court provided Plaintiff with notice of his Complaint’s pleading 2 deficiencies and granted him 45 days leave in which to amend. (Id. at 10-11.) On November 3, 2016, Plaintiff filed a Second Amended Complaint (“SAC”) 3 4 (ECF No. 20), and thereafter, a Motion to Appoint Counsel. (ECF No. 22). 5 II. 6 7 Motion for Appointment of Counsel Plaintiff has renewed his request that the Court appoint him counsel due to his “bad handwriting,” and a diagnosed “learning disability.” (ECF No. 22 at 3-4.) 8 As the Court noted in its October 21, 2016 Order (ECF No. 19 at 3-4), all 9 documents submitted by any pro se litigant, no matter how “inartfully pleaded” are 10 held to “less stringent standards than those drafted by lawyers.” Id. at 3 (quoting 11 Erickson v. Pardus, 551 U.S. 89, 94 (2007)). But there is no constitutional right to 12 counsel in a civil case; and nothing in Plaintiff’s latest filings suggest the Court 13 should exercise its limited discretion to request that an attorney represent him pro 14 bono pursuant to 28 U.S.C. § 1915(e)(1). See Lassiter v. Dept. of Soc. Servs., 452 15 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 16 2004). 17 To date, Plaintiff has filed a Complaint (ECF No. 1), a First Amended 18 Complaint (ECF No. 9), a Second Amended Complaint (ECF No. 20), three Motions 19 for Appointment of Counsel (ECF Nos. 3, 13, 22), and a Motion for Reconsideration 20 (ECF No. 6), all of which contain factual allegations, legal arguments and exhibits in 21 support. These pleadings together and alone demonstrate that while Plaintiff may not 22 be trained in the law, he is capable of legibly articulating the facts and circumstances 23 relevant to his access to courts claims, which are typical, straightforward, and not 24 legally “complex.” Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed 25 below, Plaintiff has not shown a likelihood of success on the merits. Id. Therefore, Plaintiff’s latest Motion for Appointment of Counsel (ECF No. 22) 26 27 is DENIED. 28 III. Screening of Second Amended Complaint –2– 16cv1808 1 A. Standard of Review 2 Because Plaintiff remains a prisoner and is proceeding IFP, his Second 3 Amended Complaint (ECF No. 20) also requires a pre-Answer screening pursuant to 4 28 U.S.C. § 1915(e)(2) and § 1915A(b). 5 “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious 6 suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 7 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 8 680, 681 (7th Cir. 2012)). “The standard for determining whether a plaintiff has failed 9 to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same 10 as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 11 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 12 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A 13 “incorporates the familiar standard applied in the context of failure to state a claim 14 under Federal Rule of Civil Procedure 12(b)(6)”). Thus, in deciding whether Plaintiff 15 has stated a plausible claim for relief, the Court may consider exhibits attached to his 16 Complaint. See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an 17 exhibit to a pleading is a part of the pleading for all purposes.”); Hal Roach Studios, 18 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) 19 (“[M]aterial which is properly submitted as part of the complaint may be considered” 20 in ruling on a Rule 12(b)(6) motion to dismiss.) (citing Amfac Mortg. Corp. v. Ariz. 21 Mall of Tempe, Inc., 583 F.2d 426 (9th Cir. 1978). 22 B. 23 Once again, Plaintiff claims that Defendants McNeil and Armendariz are 24 violating his right to practice his religion by changing his schedule for his prison job. 25 (SAC at 3-4.) However, Plaintiff provides very little factual allegations that would 26 indicate how the change in his work hours would have any impact on the practice of 27 his religion. While Plaintiff indicates that his religious beliefs require him to 28 “meditate day and night,” there are no allegations that it has to be a specific time or Religious Allegations –3– 16cv1808 1 why the need to mediate would necessarily interfere with his ability to retain a prison 2 job. Thus, to the extent that Plaintiff is attempting to bring a claim under the First 3 Amendment or RLUIPA, he fails to allege facts sufficient to state a claim. 4 “The right to exercise religious practices and beliefs does not terminate at the 5 prison door.” McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (per curiam). 6 In order to implicate the Free Exercise Clause of the First Amendment, the Plaintiff 7 must show that his belief is “sincerely held” and “rooted in religious belief.” See 8 Shakur v. Schiro, 514 F.3d 878, 884 (citing Malik v. Brown, 16 F.3d 330, 333 (9th 9 Cir. 1994)). 10 In addition to First Amendment protections, the Religious Land Use and 11 Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et. seq., provides: 12 16 No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person – [¶] (1) is in furtherance of a compelling governmental interest; and [¶] (2) is the least restrictive means of furthering that compelling governmental interest. 17 42 U.S.C. § 2000cc-1(a) (emphasis added); see also San Jose Christian College v. 18 Morgan Hill, 360 F.3d 1024, 1033-34 (9th Cir. 2004) (“RLUIPA . . . prohibits the 19 government from imposing ‘substantial burdens’ on ‘religious exercise’ unless there 20 exists a compelling governmental interest and the burden is the least restrictive means 21 of satisfying the governmental interest.”). 13 14 15 22 RLUIPA defines religious exercise to include “any exercise of religion, 23 whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. 24 § 2000cc-5(7)(A); San Jose Christian College, 360 F.3d at 1034. The party alleging 25 a RLUIPA violation carries the initial burden of demonstrating that a governmental 26 practice constitutes a substantial burden on his religious exercise. See 42 U.S.C. §§ 27 2000cc-1(a); 2000cc-2(b) (“[T]he plaintiff shall bear the burden of persuasion on 28 whether the law (including a regulation) or government practice that is challenged by –4– 16cv1808 1 the claim substantially burdens the plaintiff’s exercise of religion.”). Here, Plaintiff’s 2 factual allegations are insufficient on which to base either a First Amendment or 3 RLUIPA claim. Thus, the Court dismisses Plaintiff’s religious claims for failing to 4 state a claim upon which § 1983 relief can be granted. 5 C. 6 Prisoners have a constitutional right to access to the courts. Lewis v. Casey, 7 518 U.S. 343, 346 (1996). The right is limited to the filing of direct criminal appeals, 8 habeas petitions, and civil rights actions. Id. at 354. Claims for denial of access to the 9 courts may arise from the frustration or hindrance of “a litigating opportunity yet to 10 be gained” (forward-looking access claim) or from the loss of a suit that cannot now 11 be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 12 (2002); see also Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) 13 (differentiating “between two types of access to court claims: those involving 14 prisoners’ right to affirmative assistance and those involving prisoners’ rights to 15 litigate without active interference.”). Access to Courts 16 However, Plaintiff must allege “actual injury” as the threshold requirement to 17 any access to courts claim. Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. An 18 “actual injury” is “actual prejudice with respect to contemplated or existing litigation, 19 such as the inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. 20 at 348; see also Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual 21 injury as the “inability to file a complaint or defend against a charge”). The failure to 22 allege an actual injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 23 2008) (“Failure to show that a ‘non-frivolous legal claim had been frustrated’ is 24 fatal.”) (quoting Lewis, 518 U.S. at 353 & n.4). 25 In addition, Plaintiff must allege the loss of a “non-frivolous” or “arguable” 26 underlying claim. Harbury, 536 U.S. at 413-14. The nature and description of the 27 underlying claim must be set forth in the pleading “as if it were being independently 28 pursued.” Id. at 417. Finally, Plaintiff must specifically allege the “remedy that may –5– 16cv1808 1 be awarded as recompense but not otherwise available in some suit that may yet be 2 brought.” Id. at 415. 3 Plaintiff’s Second Amended Complaint still fails to allege the actual injury 4 required to state an access to courts claim. See Lewis, 518 U.S. at 351-53; Silva, 658 5 F.3d at 1104. He fails to allege any plausible facts to show that any of the Defendants 6 he seeks to sue in this case caused him “actual prejudice with respect to … existing 7 litigation.” Plaintiff further fails to allege that any of Defendants’ alleged failures to 8 either properly log, screen, or process the CDC 602 appeals he either filed or 9 attempted to file to challenge his housing status, rendered him unable to meet a filing 10 deadline, or to present his state habeas claims. Lewis, 518 U.S. at 348. 11 Because the “[f]ailure to show that a ‘non-frivolous legal claim ha[s] been 12 frustrated’ is fatal” to any First Amendment access to courts claim, Alvarez, 518 F.3d 13 at 1155 n.1 (quoting Lewis, 518 U.S. at 353), and Plaintiff has already been notified 14 of this critical pleading deficiency as well as the deficiencies found in his religious 15 claims, yet has failed to correct any of these claims, the Court DISMISSES this civil 16 action sua sponte for failure to state a claim upon which relief may be granted, and 17 without further leave to amend. See Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 18 1121; Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) 19 (“‘Futility of amendment can, by itself, justify the denial of ... leave to amend.’”) 20 (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)). 21 IV. Conclusion and Order 22 For the foregoing reasons, the Court: 23 1) DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 22); 24 2) DISMISSES Plaintiff’s Second Amended Complaint for failing state a 25 claim upon which § 1983 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2) 26 and § 1915A(b); 27 28 3) DENIES Plaintiff further leave to amend as futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an –6– 16cv1808 1 abuse of discretion where further amendment would be futile); Gonzalez, 759 F.3d 2 at 1116 (district court’s discretion in denying amendment is “particularly broad” 3 when it has previously granted leave to amend); 4 4) CERTIFIES that an appeal of this final Order of dismissal would be 5 frivolous and therefore, not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). 6 See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 7 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on 8 appeal only if appeal would not be frivolous); and 9 10 11 5) DIRECTS the Clerk of Court to terminate this civil action and close the file. IT IS SO ORDERED. 12 13 DATED: February 8, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –7– 16cv1808

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