Stevenson v. Beard et al

Filing 6

ORDER: (1) Granting 2 Motion to Proceed in Forma Pauperis And 3 Motion for Leave to File Excess Pages; (2) Dismissing Complaint for Failing to State a Claim; And (3) Denying 5 Motion for Preliminary Injunction And/or Protective Order. The Se cretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month incom e credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR.) The Court grants plaintiff f orty-five (45) days leave from the date of this Order in which to file an Amended Complaint which cures all the noted pleading deficiencies. Plaintiff's Amended Complaint must be complete by itself without reference to his original pleading. Defendants not named and any claim not re-alleged in his Amended Complaint will be considered waived. If Plaintiff fails to file an Amended Complaint within the time provided, the Court will enter a final Order dismissing this civil action base d both on Plaintiff's failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and his failure to prosecute in compliance with a court order requiring amendment. Signed by Judge Janis L. Sammartino on 5/16/2017. (All non-registered users served via U.S. Mail Service)(dxj)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 STEVIE J. STEVENSON, CDCR #K-16324, 15 16 ORDER: Plaintiff, 13 14 Case No.: 3:16-cv-03079-JLS-PCL vs. (1) GRANTING MOTIONS TO PROCEED IN FORMA PAUPERIS AND TO FILE EXCESS PAGES (ECF Nos. 2, 3); JEFFREY BEARD, et al., Defendants. 17 (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b); 18 19 20 AND 21 (3) DENYING MOTION FOR PRELIMINARY INJUNCTION AND/OR PROTECTIVE ORDER (ECF No. 5) 22 23 24 25 26 STEVIE J. STEVENSON (“Plaintiff”), currently incarcerated at Centinela State 27 Prison (“CEN”) in Imperial, California, and proceeding pro se, has filed a civil rights 28 Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1), together with a Motion for Leave 1 3:16-cv-03079-JLS-PCL 1 2 to File Excess Pages (ECF No. 3), and followed by a Motion for a Preliminary Injunction 3 (ECF No. 5). 4 Plaintiff has not paid the civil filing fee required by 28 U.S.C. § 1914(a); instead he 5 seeks leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF 6 No. 2). 7 I. Motion to Proceed In Forma Pauperis 8 All parties instituting any civil action, suit or proceeding in a district court of the 9 United States, except an application for writ of habeas corpus, must pay a filing fee of 10 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 11 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 12 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 13 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 14 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 15 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 16 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 17 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 18 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 19 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 20 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 21 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 22 trust account statement, the Court assesses an initial payment of 20% of (a) the average 23 monthly deposits in the account for the past six months, or (b) the average monthly balance 24 in the account for the past six months, whichever is greater, unless the prisoner has no 25 26 1 27 28 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:16-cv-03079-JLS-PCL 1 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 2 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 3 month’s income, in any month in which his account exceeds $10, and forwards those 4 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 5 136 S. Ct. at 629. 6 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 7 Statement Report as well as a prison certificate certified by a trust account official at CEN. 8 See ECF No. 2 at 4–8; 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2; Andrews, 398 F.3d 9 at 1119. These statements show that while Plaintiff carried an average monthly balance 10 and had average monthly deposits of $20.09 in his account over the 6-month period 11 immediately preceding the filing of his Complaint, he had an available balance of zero at 12 the time of filing. See ECF No. 2 at 4, 7. Thus, the Court assesses Plaintiff’s initial partial 13 filing fee to be $4.01 pursuant to 28 U.S.C. § 1915(b)(1), but acknowledges he may be 14 unable to pay even that minimal initial fee at this time. See 28 U.S.C. § 1915(b)(4) 15 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or 16 appealing a civil action or criminal judgment for the reason that the prisoner has no assets 17 and no means by which to pay the initial partial filing fee”); Bruce, 136 S. Ct. at 630; 18 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 19 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to 20 the lack of funds available to him when payment is ordered.”). 21 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), 22 declines to exact any initial filing fee because his prison certificate indicates he may have 23 “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California 24 Department of Corrections and Rehabilitation (“CDCR”), or his designee, to instead collect 25 the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them 26 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 27 U.S.C. § 1915(b)(1). See id. 28 /// 3 3:16-cv-03079-JLS-PCL 1 II. Motion for Leave to File Excess Pages 2 Civil Local Rule 8.2a provides that complaints filed by prisoners pursuant to 42 3 U.S.C. § 1983 must be “legibly written or typewritten on forms supplied by the court,” and 4 any additional pages not exceed a total of fifteen. See S.D. Cal. Civ. L.R. 8.2.a. Plaintiff 5 used the Court’s form Complaint, but he interspersed additional pages and attached more— 6 therefore, his pleading comprises thirty-six pages (ECF No. 1). Plaintiff requests leave to 7 file these excess pages in an effort to “ensure that all claims were presented correctly,” and 8 to provide an “explanation about the exhaustion of [his] administrative remedies.” (ECF 9 No. 3 at 1.) 10 A court may sua sponte strike a document filed in violation of the Court’s local 11 procedural rules. See Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 12 2010) (noting district court’s “power to strike items from the docket as a sanction for 13 litigation conduct”); Smith v. Frank, 923 F.3d 139, 142 (9th Cir. 1991) (“For violations of 14 the local rules, sanctions may be imposed including, in appropriate cases, striking the 15 offending pleading.”). However, “district courts have broad discretion in interpreting and 16 applying their local rules,” Simmons v. Navajo Cty., 609 F.3d 1011, 1017 (9th Cir. 2010) 17 (internal quotation and citation omitted), and the Court construes the pleadings of pro se 18 litigants in civil rights cases liberally, affording them the benefit of doubt. See Karim- 19 Panahi v. L.A. Police Dept., 839 F.2d 621, 623 (9th Cir. 1988); Bretz v. Kelman, 773 F.2d 20 1026, 1027, n.1 (9th Cir. 1985) (en banc). 21 Here, while Plaintiff’s Complaint exceeds the page limitations set by Local Rule 22 8.2.a, it is not so verbose, “replete with redundancy [or] largely irrelevant” that it violates 23 FED. R. CIV. P. 8(a). See Hearns v. San Bernardino Police Dept., 530 F.3d 1124, 1132 (9th 24 Cir. 2008) (citation omitted); Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 25 F.3d 1047, 1059 (9th Cir. 2011) (noting that while “the proper length and level of clarity 26 for a pleading cannot be defined with any great precision,” Rule 8(a) has “been held to be 27 violated by a pleading that was needlessly long, or a complaint that was highly repetitious, 28 /// 4 3:16-cv-03079-JLS-PCL 1 or confused, or consisted of incomprehensible rambling” (quoting 5 Charles A. Wright & 2 Arthur R. Miller, Federal Practice & Procedure § 1217 (3d ed. 2010))). Accordingly, the Court GRANTS Plaintiff’s Motion for Leave to File Excess Pages 3 4 (ECF No. 3). 5 III. Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 6 A. 7 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 8 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, 9 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 10 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 11 immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 12 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 13 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 14 targets of frivolous or malicious suits need not bear the expense of responding.’ ” 15 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted). Standard of Review 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 19 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 20 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 21 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 22 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 23 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 24 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 25 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 26 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 27 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 28 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 5 3:16-cv-03079-JLS-PCL 1 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 2 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 3 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Plaintiff’s Allegations 4 B. 5 Plaintiff divides his Complaint into eight separate causes of action or “Counts,” but 6 Counts 1-4 and 8 significantly overlap. Specifically, in Counts 1-4, Plaintiff claims that on 7 January 1, 2014, the former Secretary of the California Department of Corrections and 8 Rehabilitation (“CDCR”), Jeffrey Beard, “in concert with” Scott Kernan, CDCR’s current 9 Secretary, and Shannon Swain, CDCR’s Acting Superintendent of Education, violated his 10 First and Fourteenth Amendment rights by “arbitrarily” amending certain sections of Title 11 15 of the California Code of Regulations governing inmate law libraries, access to those 12 libraries, and their contents, see ECF No. 1 at 5–6 (“Count 1”); replacing Witkin & Epstein 13 treatises and California Jurisprudence with a “paging system,” and depriving inmates of 14 the “Gilmore collection” published by West, id. at 7–8 (“Count 2”); failing to update the 15 “only three” library computers available to him to “conduct legal research,” and limiting 16 his use of those computers to thirty-minute increments, id. at 9–10 (“Count 3”), and 17 “changing the LLEDS [Law Library Electronic Delivery System] from Westlaw to Lexis.” 18 Id. at 11–13 (“Count 4”). In Count 8, Plaintiff alleges CEN Senior Librarian J. Rohrer 19 refused to provide him with copies of three cases “out of the California Reporter 2d and 20 3rd series” in November and December 2016. Id. at 20 (“Count 8”). Plaintiff claims this 21 denied him the opportunity to “learn about a specific topic of the law as afforded by 22 Westlaw.” Id. 23 Plaintiff further claims that in August 2016, Secretary Kernan, CEN’s Warden R. 24 Madden, and Litigation Coordinator N. Telles denied him permission to possess “three 25 legal confidential audio CDs,” which he claims “dealt with his criminal case,” and which 26 were related to a “Penal Code section 1054.9 motion for post-conviction discovery,” which 27 had been filed by “his appointed attorney James Bisnow” on August 9, 2012. Id. at 16–17 28 (“Count 6”). 6 3:16-cv-03079-JLS-PCL 1 In addition, Plaintiff contends two pieces of legal confidential mail—one on or about 2 May 27, 2016, and addressed from the California Innocence Project, and another on or 3 about June 27, 2016, addressed to a Los Angeles County District Attorney—were delivered 4 and/or returned to him opened and were read outside his presence. Id. at 14–15 (“Count 5 5”). 6 Finally, in Count 7, Plaintiff claims a CEN mailroom staff member “with the initials 7 “PC” or “C,” together with mailroom supervisor C. Bell, mail staff member C. Walker, 8 Warden Madden, and CEN’s Associate Warden of Business Services, D. Brown, denied 9 his “First Amendment right to correspond with attorneys” and denied him the “right to mail 10 his appeal to the CDCR administrative court” in October and November 2016, by refusing 11 to acknowledge his “indigence,” denying him “the right to sign a CDCR 193 form,” and 12 requiring that he “provide postage for mailing under CCR Title 15 section 3138(g) (h).” 13 Id. at 18–19. 14 Plaintiff alleges on the face of his pleading that “Counts 1-4 and 6” have been 15 exhausted, but he concedes Counts 5 and 7 “are currently pending.” Id. at 21. Plaintiff 16 makes no reference to Count 8 with regard to exhaustion. Id. at 21, 31–32. He seeks 17 declaratory judgment, injunctive relief, compensatory and punitive damages, on behalf of 18 himself, a “class” of “twenty other prisoners,” and “the entire prison population within the 19 CDCR.” Id. at 15, 33–36. 20 C. 21 As an initial matter, the Court sua sponte dismisses all claims purported to be raised 22 by Plaintiff on behalf of any inmate other than himself. (ECF No. 1 at 25.) Class action 23 Plaintiffs must be represented by counsel “best able to represents the interests of the class.” 24 See FED. R. CIV. P. 23(g). “A litigant appearing in propria persona has no authority to 25 represent anyone other than himself.” Russell v. United States, 308 F.2d 78, 79 (9th Cir. 26 1962); see also McShane v. United States, 366 F.2d 286 (9th Cir. 1966) (privilege to appear 27 without counsel is personal to the litigant). “It is plain error to permit [an] imprisoned 28 litigant who is unassisted by counsel to represent his fellow inmates in a class action.” Class Action 7 3:16-cv-03079-JLS-PCL 1 Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). This action, therefore, cannot 2 be construed as a class action and may proceed only as an individual civil suit brought by 3 Plaintiff and based on alleged violations of only his constitutional rights pursuant to 42 4 U.S.C. § 1983. See Spence v. Beard, No. 2:16-CV-1828 KJN P, 2017 WL 896293, at *3 5 (E.D. Cal. Mar. 6, 2017) (dismissing pro se prisoner’s attempt to bring class action 6 challenging content of CDCR’s law library). 7 D. 8 Next, the Court turns to Counts 1–4. In these Counts Plaintiff seeks to sue the former 9 Secretary of the CDCR, Jeffrey Beard, for “arbitrarily” promulgating and enforcing an 10 early-2014 amendment to Title 15 of the California Code of Regulations—which governs 11 inmate access to law libraries and the contents of those libraries—in ways different that 12 those previously “afforded by the Gilmore collection . . . .” (See ECF No. at 5-13.) In these 13 same Counts, Plaintiff also seeks to sue Defendants Swain and Madden, who are alleged 14 to have worked “in concert” with Beard. However, in all of these Counts Plaintiff fails to 15 state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2), § 1915A(b)(1). 16 Under section 1983, Plaintiff must allege facts sufficient to show that each named 17 Defendant individually participated in causing a constitutional violation. Iqbal, 556 U.S. 18 at 676–77; Simmons, 609 F.3d at 1020–21. Liability may not be imposed on supervisory 19 personnel under the theory of respondeat superior, Iqbal, 556 U.S. at 676-77; Simmons, 20 609 F.3d at 1020-21; and as CDCR and CEN administrators, Defendants Beard, Swain, 21 and Madden may only be held liable if they personally “participated in or directed the 22 violations, or knew of the violations and failed to act to prevent them,” Taylor v. List, 880 23 F.2d 1040, 1045 (9th Cir.1989); accord Starr v. Baca, 652 F.3d 1202, 1205–08 (9th Cir. 24 2011). Some culpable action or inaction must be attributable to the Defendants 25 individually, and while the creation or enforcement of, or acquiescence in, an 26 unconstitutional policy may support a claim, Plaintiff must further allege that the policy 27 was the moving force behind the violation. Starr, 652 F.3d at 1205; Jeffers v. Gomez, 267 28 F.3d 895, 914–15 (9th Cir. 2001). Individual Liability & the Gilmore Collection 8 3:16-cv-03079-JLS-PCL 1 In his Complaint, Plaintiff alleges only that former Secretary Beard’s 2014 actions, 2 taken “in concert” with Defendants Swain and Madden, “deprived [him] of the basis [sic] 3 core legal resource material afforded by the Gilmore collection.” (ECF No. 1 at 7, 5, 9– 4 11). This is insufficient to state a plausible claim of personal liability. See, e.g., Morales v. 5 Cribbs, No. 1:13-CV-00591 DLB PC, 2014 WL 2174624, at *5–6 (E.D. Cal. May 23, 6 2014), aff’d, 633 F. App’x 434 (9th Cir. 2016). 7 Fifty years ago, in Gilmore v. Lynch, Civil Case No. 3:66-cv-45878-SI, the United 8 States District Court for the Northern District of California consolidated numerous suits of 9 inmates and issued an injunction requiring California to maintain a specified list of legal 10 literature in all its prisons to help inmates gain access to the courts, as part of a consent 11 decree. See Corral v. Yates, No. 1:10-CV-01341-SKO-HC, 2011 WL 3925131, at *4 (E.D. 12 Cal. Sept. 7, 2011). In 1972, the court approved regulations proposed by CDC offering a 13 more comprehensive list of materials and ordered their adoption. See Gilmore v. People, 14 220 F.3d 987, 994 (9th Cir. 2000). In 1997, after the passage of the Prison Litigation 15 Reform Act, CDC officials sought to terminate the 1972 order. Id. at 994–95; see also 16 Morales, No. 1:13-CV-00591 DLB PC, 2014 WL 2174624, at *6 (discussing history of 17 Gilmore litigation). Ultimately, the Court that issued the Gilmore injunction “granted the 18 defendants’ motion to terminate the injunction and the court’s jurisdiction on April 20, 19 2010. . . . . Thus, the Gilmore case is no longer pending.” Corral, 2011 WL 3925131, at 20 *4. 21 Moreover, even if Plaintiff had alleged facts sufficient to show personal liability on 22 behalf of Defendants Beard, Swain, and Madden, he still fails to allege facts sufficient to 23 show that their alleged failure to comply with Gilmore’s remedial order, by itself, violates 24 the Constitution. “[R]emedial orders . . . do not create ‘rights, privileges or immunities 25 secured by the Constitution and the laws’ of the United States.” Hart v. Cambra, 1997 WL 26 564059, *5 (N.D. Cal. 1997) (quoting Green v. McKaskle, 788 F.2d 1116, 1123–24 (5th 27 Cir. 1986); Morales, No. 1:13-CV-00591 DLB PC, 2014 WL 2174624, at *6). 28 /// 9 3:16-cv-03079-JLS-PCL 1 E. 2 Further, and with respect to Counts 1-4, 6, and 8, Plaintiff fails to allege facts 3 sufficient to state a plausible access to courts claim. See 28 U.S.C. § 1915(e)(2), 4 § 1915A(b)(1). This is in large part because, since Gilmore, the law governing prison law 5 libraries has changed dramatically. Prisoners have a constitutional right of access to the 6 courts. Lewis v. Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 7 (1977), limited in part on other grounds by Lewis, 518 U.S. at 354. Because states must 8 ensure indigent prisoners meaningful access to the courts, Bounds held that prison officials 9 were required to provide either: (1) adequate law libraries, or (2) adequate assistance from 10 persons trained in the law. Bounds, 430 U.S. at 828. Bounds was interpreted to establish 11 “core requirements,” and a prisoner alleging deprivation of those core requirements was 12 not required to also allege actual injury in order to a state constitutional claim. See, e.g., 13 Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989). Access to Courts 14 However, in 1996 Lewis abolished that approach; and now, in order to state a claim 15 of a denial of the right to access the courts, a prisoner must establish that he has suffered 16 “actual injury,” a jurisdictional requirement derived from the standing doctrine. Lewis, 518 17 U.S. at 349. An “actual injury” is “actual prejudice with respect to contemplated or existing 18 litigation, such as the inability to meet a filing deadline or to present a claim.” Id. at 348 19 (citation and internal quotation marks omitted). The right of access does not require the 20 State to “enable the prisoner to discover grievances,” or even to “litigate effectively once 21 in court.” Id. at 354; see also Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining 22 actual injury as the “inability to file a complaint or defend against a charge”). Instead, 23 Lewis limits the right of access to the courts, as follows: 24 25 26 27 28 [T]he injury requirement is not satisfied by just any type of frustrated legal claim . . . . Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are 10 3:16-cv-03079-JLS-PCL 1 2 3 4 those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration. 5 Id. at 346; see also Spence v. Beard, No. 2:16-CV-1828 KJN P, 2017 WL 896293, at *2– 6 3 (E.D. Cal. Mar. 6, 2017). Indeed, the failure to allege an actual injury is “fatal.” Alvarez 7 v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to show that a ‘non-frivolous 8 legal claim had been frustrated’ is fatal.” (quoting Lewis, 518 U.S. at 353 & n.4)). 9 Moreover, and in addition to alleging an “actual injury,” Plaintiff must also allege 10 facts sufficient to describe the “non-frivolous” or “arguable” nature of the underlying claim 11 he contends was lost as result of Defendants’ actions. Christopher v. Harbury, 536 U.S. 12 403, 413-14 (2002). The nature and description of the underlying claim must be set forth 13 in the pleading “as if it were being independently pursued.” Id. at 417. 14 As currently pleaded, Plaintiff’s claims in Counts 1-4, i.e., that CEN’s library 15 facilities fail to meet the Gilmore collection’s standards, rely on Lexis versus Westlaw, 16 employ a “paging system,” and limit the amount of time each inmate may spend on the 17 computer, fail to state an access to courts claim under Lewis—“an inmate cannot establish 18 relevant actual injury simply by establishing that his prison’s law library or legal assistance 19 program is subpar in some theoretical sense.” Lewis, 518 U.S. at 351. “[P]rison law 20 libraries and legal assistance programs are not ends in themselves,” and Lewis makes clear 21 that courts must “leave it to prison officials to determine how best to ensure that inmates 22 . . . have a reasonably adequate opportunity to file nonfrivolous legal claims challenging 23 their convictions or conditions of confinement.” Id. at 356. “[I]t is that capability, rather 24 than the capability of turning pages in a law library that is the touchstone.” Id. at 357. 25 As to Counts 6 and 8, Plaintiff is a bit more specific. For example, in Count 6, 26 Plaintiff claims that some time in August 2016, Defendants Kernan, Madden, and Telles’ 27 “collective actions and inactions” denied him access to “three legal audio CDs” sent to him 28 by an attorney appointed to represent him in state habeas proceedings—which were filed 11 3:16-cv-03079-JLS-PCL 1 four years earlier in August 2012, pursuant to California Penal Code section 1054.9—and 2 that this deprivation denied him access to the court.2 (ECF No. 1 at 16-17). However, 3 Plaintiff fails to allege any “actual injury” suffered as a result. He admits the Penal Code 4 section 1054.9 motion for post-conviction discovery was filed “on or about August 9, 5 2012,” he was represented by counsel at the time, and he does not further allege any facts 6 to plausibly show he suffered any “actual prejudice with respect to [his] existing litigation, 7 such as the inability to meet a filing deadline or to present a claim,” as a result of Defendant 8 Kernan, Madden or Telles’s actions, which occurred four years later. Lewis, 518 U.S. at 9 348. 10 Plaintiff’s access to courts claims against Defendant Rohrer in Count 8 fare no better; 11 for while Plaintiff contends Rohrer refused to “provide a copy” of “three cases” so that he 12 could “conduct legal research” in November and/or December 2016, (ECF No. 1 at 20), he 13 does not further allege how or whether this denial resulted in any “actual injury” with 14 respect to a “non-frivolous” criminal appeal, habeas action, or conditions of confinement 15 claim. Id.; see also Alvarez, 518 F.3d at 1155 n.1. 16 Thus, for these reasons, the Court finds Counts 1-4, 6, and 8 fail to state an access 17 to courts claim upon which § 1983 relief can be granted, and therefore are dismissed sua 18 sponte pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 1126– 19 27; Rhodes, 621 F.3d at 1004. 20 D. 21 In Count 5, Plaintiff claims two pieces of “clearly marked” confidential legal mail 22 were opened and read outside his presence by “unknown mailroom and/or correctional 23 staff,” on or about May 27, 2016, and again on or about June 27, 2016. (ECF No. 1 at 14– Legal Mail (Counts 5 and 7) 24 25 26 27 28 California Penal Code section 1054.9 “creates a mechanism by which, . . . a capital or LWOP prisoner prosecuting a habeas corpus petition [in state court] can seek discovery of ‘materials in the possession of the prosecution and law enforcement authorities to which the same defendant would have been entitled at [the] time of trial.’ ” CAL. PENAL CODE § 1054.9(b); People v. Superior Court, 2 Cal. 5th 523, 528 (2017), reh’g denied (Apr. 19, 2017). 2 12 3:16-cv-03079-JLS-PCL 1 15.) In Count 7, Plaintiff contends a CEN mail staff member with the initials “C” or 2 “PC,”mail room supervisor C. Bell, and mail staff member C. Walker, with the “knowledge 3 and approval” of Warden Madden and Associate Warden D. Brown, several times violated 4 his “right to send legal confidential mail” to the CDCR Chief of Inmate Appeals, and three 5 California State Bar and California Appellate Project attorneys. (ECF No. 1 at 18–19.) 6 These alleged violations occurred on October and November 2016, when these individuals 7 required Plaintiff to “provide postage for mailing” pursuant to Title 15, sections 3138(g) 8 and (h)3 of the California Code of Regulations, and refused him the “right to sign a CDCR 9 193 Form” authorizing the withdrawal of those costs from his inmate trust account. (Id.) 10 The Court finds that, as currently plead, Counts 5 and 7 allege facts sufficient to state 11 plausible First Amendment claims. See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995); 12 Hayes v. Idaho Correctional Center, 849 F.3d 1204, 1211–12 (9th Cir. 2017) (finding 13 prisoner who alleged to have had his “properly marked legal mail” “arbitrarily and 14 capriciously opened outside his presence on two separate occasions” stated a plausible First 15 Amendment claim); cf. Mangiaracina v. Penzone, 849 F.3d 1191, 1196 (9th Cir. 2017) 16 (“[P]risoners have a Sixth Amendment right to be present when legal mail related to a 17 criminal matter is inspected.”); see also Silva v. Di Vittorio, 658 F.3d 1090, 1102–03 (9th 18 Cir. 2011) (discussing requirements for an access-to-court claim premised on prison 19 officials’ alleged interference, as opposed to failure to affirmatively assist, with any 20 /// 21 22 Title 15 of the California Code of Regulations, section 3138(a) requires prison officials “upon an indigent inmate’s request,” to provide “writing paper, envelopes, a writing implement, and the postage required for five 1-ounce First Class letters per week.” Subsection (g) provides that “[i]ndigent inmates desiring to correspond with their attorney or any other confidential correspondent shall be required to utilize their weekly allotment of indigent supplies to send such correspondence,” id. § 3138(g), and subsection (h) provides indigent inmates “free and unlimited mail to any court or the Attorney General’s Office.” Id. § 3138(h). Section 3084.2(d) requires prisoner’s filing a third level administrative appeal to “mail the appeal and supporting documents to the third level Appeals Chief via the United States mail service utilizing his or her own funds, unless the appellant is indigent, in which case the mailing of appeals to the third level of review shall be processed in accordance with indigent mail provisions pursuant to section 3138.” CAL. CODE REGS., tit. 15 § 3084.2(d). 3 23 24 25 26 27 28 13 3:16-cv-03079-JLS-PCL 1 prisoner lawsuit), overruled on other grounds as stated by Richey v. Dahne, 807 F.3d 1202, 2 1209 n.6 (9th Cir. 2015). 3 However, the Court further finds that because Plaintiff plainly concedes, on the face 4 of his Complaint, that the administrative exhaustion of both Claims 5 and 7 was “currently 5 pending” at the time of filing (ECF No. 1 at 21, 31–32), they too must be dismissed. See 6 Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (noting that where “a 7 prisoner’s failure to exhaust is clear from the face of the complaint,” his complaint is 8 subject to dismissal for failure to state a claim), cert. denied sub nom., Scott v. Albino, 135 9 S. Ct. 403 (2014); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s 10 concession to nonexhaustion is a valid ground for dismissal . . . .”), overruled on other 11 grounds by Albino, 747 F.3d at 1166. The “exhaustion requirement does not allow a 12 prisoner to file a complaint addressing non-exhausted claims.” Rhodes, 621 F.3d at 1004 13 (citing McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002)). 14 Thus, for all the reasons discussed, the Court finds Plaintiff’s Complaint must be 15 dismissed in its entirety for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and 16 § 1915A(b). See Lopez, 203 F.3d at 1126–27; Rhodes, 621 F.3d at 1004. 17 E. 18 Because Plaintiff is proceeding without counsel, and he has now been provided with 19 “notice of the deficiencies in his complaint,” the Court will also grant him an opportunity 20 to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. 21 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).4 22 IV. Leave to Amend Plaintiff’s Motion for Preliminary Injunction 23 Finally, Plaintiff also requests a preliminary injunction and/or protective order 24 allowing him to “send outgoing mail from CEN to attorneys, state bar, the Chief of Inmate 25 /// 26 27 4 28 Plaintiff is cautioned that all claims re-alleged in his Amended Complaint must be exhausted pursuant to 42 U.S.C. § 1997e(a) prior to its filing. See Cano v. Taylor, 739 F.3d 1214, 1220 (9th Cir. 2014). 14 3:16-cv-03079-JLS-PCL 1 Appeals Branch for the CDCR or anyone identified as persons or employees of persons 2 with whom inmates may correspond confidentially.” (ECF No. 5 at 1.) 3 Procedurally, a federal district court may issue emergency injunctive relief only if it 4 has personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit. 5 See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting 6 that one “becomes a party officially, and is required to take action in that capacity, only 7 upon service of summons or other authority-asserting measure stating the time within 8 which the party served must appear to defend”). The court may not attempt to determine 9 the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 10 U.S. 229, 234–35 (1916); Zepeda v. INS, 753 F.2d 719, 727–28 (9th Cir. 1983). Pursuant 11 to Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the 12 action,” their “officers, agents, servants, employees, and attorneys,” and “other persons 13 who are in active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)–(C). 14 Substantively, “‘[a] plaintiff seeking a preliminary injunction must establish that he 15 is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence 16 of preliminary relief, that the balance of equities tips in his favor, and that an injunction is 17 in the public interest.” Glossip v. Gross, __ U.S. __, 135 S. Ct. 2726, 2736–37 (2015) 18 (quoting Winter v. Nat. Resources Defense Council, Inc., 555 U.S. 7, 20 (2008)). “Under 19 Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in order 20 to obtain a preliminary injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 21 1127, 1131 (9th Cir. 2011). 22 First, because Plaintiff’s Complaint has not survived the initial sua sponte screening 23 required by 28 U.S.C. § 1915(e)(2) and § 1915A, the United States Marshal has not yet 24 been directed to effect service on his behalf, and the named Defendants have no actual 25 notice of either of Plaintiff’s Complaint or his Motion for a Preliminary Injunction. 26 Therefore, the Court cannot grant Plaintiff injunctive relief because it has no personal 27 jurisdiction over any Defendant at this time. See Fed. R. Civ. P. 65(a)(1), (d)(2); Murphy 28 Bros., Inc., 526 U.S. at 350; Zepeda, 753 F.2d at 727–28. A district court has no authority 15 3:16-cv-03079-JLS-PCL 1 to grant relief in the form of a temporary restraining order or permanent injunction where 2 it has no jurisdiction over the parties. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 3 (1999) (“Personal jurisdiction, too, is an essential element of the jurisdiction of a district 4 . . . court, without which the court is powerless to proceed to an adjudication.”) (citation 5 and quotation omitted)). 6 Second, in conducting its initial sua sponte screening of Plaintiff’s Complaint, the 7 Court has found it fails to state a claim upon which relief can be granted, and has dismissed 8 it without prejudice pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Therefore, 9 Plaintiff has necessarily failed to show, for purposes of justifying preliminary injunctive 10 relief, any likelihood of success on the merits of his claims at this time. Id.; see also Asberry 11 v. Beard, Civil Case No. 3:13-cv-2573-WQH JLB, 2014 WL 3943459, at *9 (S.D. Cal. 12 Aug. 12, 2014) (denying prisoner’s motion for preliminary injunction because his 13 complaint was subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and 14 therefore he had not shown he was “likely to succeed on the merits” of any claim, that “the 15 balance of equities tip[ped] in his favor,” or the issuance of an injunction would serve the 16 public interest (citing Winter, 555 U.S. at 20)). 17 Finally, Plaintiff has not alleged, and cannot yet demonstrate that he is or will be 18 subject to immediate and irreparable harm if an injunction does not issue. To meet Federal 19 Rule of Civil Procedure 65’s “irreparable injury” requirement, Plaintiff must do more than 20 simply allege imminent harm; he must demonstrate it. Caribbean Marine Servs. Co., Inc. 21 v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). This requires he allege “specific facts in 22 an affidavit or a verified complaint [which] clearly show” a credible threat of “immediate 23 and irreparable injury, loss or damage.” Fed R. Civ. P. 65(b)(A). “Speculative injury does 24 not constitute irreparable injury sufficient to warrant granting a preliminary injunction.” 25 Id. at 674–75. 26 Thus, because Plaintiff has failed to serve the required notice upon the adverse 27 parties, has not shown a likelihood of success on the merits, and has offered only 28 speculative allegations of harm which are neither immediate nor irreparable, the Court 16 3:16-cv-03079-JLS-PCL 1 DENIES his Motion for Preliminary Injunction and/or Protective Order (ECF No. 5) and 2 finds he is not entitled to the extraordinary injunctive relief he seeks. See Dymo Indus. v. 3 Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964) (“The grant of a preliminary injunction 4 is the exercise of a very far reaching power never to be indulged in except in a case clearly 5 warranting it.”). 6 V. Conclusion and Order 7 Based on the foregoing the Court: 8 (1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2); 9 (2) DIRECTS the Secretary of the CDCR, or his designee, to collect from 10 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 11 payments from his account in an amount equal to twenty percent (20%) of the preceding 12 month’s income and forwarding those payments to the Clerk of the Court each time the 13 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 14 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 15 THIS ACTION; 16 (3) 17 DIRECTS the Clerk of the Court to serve a copy of this Order on Scott Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 18 (4) GRANTS Plaintiff’s Motion for Leave to File Excess Pages (ECF No. 3); 19 (5) DENIES Plaintiff’s Motion for Preliminary Injunction and/or Protective 20 21 Order (ECF No. 5); and (6) DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 22 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and GRANTS 23 him forty-five (45) days leave from the date of this Order in which to file an Amended 24 Complaint which cures all the noted pleading deficiencies. Plaintiff’s Amended Complaint 25 must be complete by itself without reference to his original pleading. Defendants not 26 named and any claim not re-alleged in his Amended Complaint will be considered waived. 27 See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 28 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey 17 3:16-cv-03079-JLS-PCL 1 v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with 2 leave to amend which are not re-alleged in an amended pleading may be “consider[ed] . . . 3 waived if not repled”). 4 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 5 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state 6 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 7 1915A(b), and his failure to prosecute in compliance with a court order requiring 8 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 9 not take advantage of the opportunity to fix his complaint, a district court may convert the 10 11 12 dismissal of the complaint into dismissal of the entire action.”). IT IS SO ORDERED. Dated: May 16, 2017 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 3:16-cv-03079-JLS-PCL

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