Jones v. Tiscornia

Filing 9

ORDER Dismissing First Amended Complaint for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court dismisses Plaintiff's FAC for failing to state a claim upon which § 1983 relief can granted pursuant to 28 U.S.C . §§ 1915(e)(2)(B)(ii) & 1915A; and grants Plaintiff 30 days leave to file an Amended Complaint which cures all the deficiencies of pleading described in this Order. The Clerk of Court is directed to mail Plaintiff a court approved form civil rights complaint. Signed by Judge Gonzalo P. Curiel on 6/12/2018.(All non-registered users served via U.S. Mail Service)(Prisoner 1983 Amended Complaint form mailed)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GARLAND JONES,
CDCR #F-47928

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Case No.: 3:18-cv-00544-GPC-PCL
ORDER DISMISSING FIRST
AMENDED COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii)

Plaintiff,

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vs.

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MRS. TISCORNIA; MRS. MONRT,

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Defendants.

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I.

Procedural History
On March 15, 2018, Garland Jones (“Plaintiff”), a prisoner incarcerated at the

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

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proceeding pro se, filed a civil complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1

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at 1.

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Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the

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time of filing; instead he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to

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28 U.S.C. § 1915(a) (Doc. No. 2).
On March 26, 2018, this Court GRANTED Plaintiff’s Motion to Proceed IFP and

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sua sponte DISMISSED his Complaint for failing to state a claim upon which relief could

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be granted. See Doc. No. 4 at 7-8. Plaintiff was granted leave to file an amended

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pleading in order to correct the deficiencies of pleading noted in the Court’s Order. See

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id. On April 17, 2018, Plaintiff filed his First Amended Complaint (“FAC”). (Doc. No.

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5.)

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II.

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, because he is a prisoner and is

Standard of Review

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proceeding IFP, his FAC requires a pre-answer screening pursuant to 28 U.S.C.

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§ 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a

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prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state

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a claim, or seeks damages from defendants who are immune. See Williams v. King, 875

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F.3d 500, 502 (9th Cir. Nov. 9, 2017) (discussing 28 U.S.C. § 1915(e)(2)) (citing Lopez v.

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Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)); Rhodes v. Robinson, 621 F.3d

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1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of

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[screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the

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expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014)

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(quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). A

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complaint is “frivolous” if it “lacks an arguable basis either in law or in fact.” Neitzke v.

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Williams, 490 U.S. 319, 324 (1989).

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (internal quotation marks omitted).

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its

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judicial experience and common sense.” Id. The “mere possibility of misconduct” or

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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B.

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Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and

42 U.S.C. § 1983

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statutory challenges to actions by state and local officials.” Anderson v. Warner, 451

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F.3d 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff

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must allege two essential elements: (1) that a right secured by the Constitution or laws of

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the United States was violated, and (2) that the alleged violation was committed by a

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person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe

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v. Frye, 789 F.3d 1030, 1035-36 (9th Cir. 2015).

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C.

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Plaintiff alleges that Defendants have denied Plaintiff “access to courts.” (FAC at

Access to Courts claim

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3.) Prisoners have a constitutional right to access to the courts. Lewis v. Casey, 518 U.S.

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343, 346 (1996). The right is limited to the filing of direct criminal appeals, habeas

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petitions, and civil rights actions. Id. at 354. Claims for denial of access to the courts

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may arise from the frustration or hindrance of “a litigating opportunity yet to be gained”

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(forward-looking access claim) or from the loss of a suit that cannot now be tried
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(backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002); see

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also Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (differentiating “between

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two types of access to court claims: those involving prisoners’ right to affirmative

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assistance and those involving prisoners’ rights to litigate without active interference.”).

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However, Plaintiff must allege “actual injury” as the threshold requirement to any

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access to courts claim. Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. An “actual

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injury” is “actual prejudice with respect to contemplated or existing litigation, such as the

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inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348; see also

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Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the

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“inability to file a complaint or defend against a charge”). The failure to allege an actual

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injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to

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show that a ‘non-frivolous legal claim had been frustrated’ is fatal.”) (quoting Lewis, 518

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U.S. at 353 & n.4).

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

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underlying claim. 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, Plaintiff must specifically allege the “remedy that may be

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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 FAC 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. Thus, the Court finds that

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Plaintiff’s FAC fails to include any “factual matter” to show how or why any of the

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individual Defendant in this case caused him to suffer any “actual prejudice” “such as the

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inability to meet a filing deadline or to present a claim,” with respect to any case. Lewis,

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518 U.S. at 348; Jones, 393 F.3d at 936; Iqbal, 556 U.S. at 678.

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Accordingly, because Plaintiff has failed to allege facts sufficient to show that any

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named Defendant caused him to suffer any “actual injury” with respect to any non-

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frivolous direct criminal appeal, habeas petition, or civil rights action he may have filed,
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see Lewis, 518 U.S. at 354, the Court finds Plaintiff’s access to courts claims must be

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dismissed for failing to state a claim upon which § 1983 relief can be granted.

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D.

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Plaintiff also claims that Defendants have failed to properly respond to his

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administrative grievances. See FAC at 3-4. However, a prison official’s alleged

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improper processing of an inmate’s grievances or appeals, without more, cannot serve as

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a basis for section 1983 liability. See generally Ramirez v. Galaza, 334 F.3d 850, 860

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(9th Cir. 2003) (prisoners do not have a “separate constitutional entitlement to a specific

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prison grievance procedure.”) (citation omitted); Mann v. Adams, 855 F.2d 639, 640 (9th

Grievance claims

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Cir. 1988) (due process not violated simply because defendant fails properly to process

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grievances submitted for consideration). Accordingly, Plaintiff’s claims arising from the

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processing of his administrative grievances must be dismissed for failing to state a claim

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upon which § 1983 relief can be granted.

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E.

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A pro se litigant must be given leave to amend his pleading to state a claim unless

Leave to Amend

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it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203

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F.3d at 1130 (noting leave to amend should be granted when a complaint is dismissed

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under 28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the

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defect”). Therefore, while the Court finds Plaintiff’s FAC fails to state a claim upon

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which relief can be granted, it will provide him a chance to fix the pleading deficiencies

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discussed in this Order, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

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2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

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III.

Conclusion and Order

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For all the reasons discussed, the Court:

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1.

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DISMISSES Plaintiff’s FAC for failing to state a claim upon which § 1983

relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A;
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GRANTS Plaintiff thirty (30) days leave to file an Amended Complaint

which cures all the deficiencies of pleading described in this Order. Plaintiff is cautioned,
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however, that should he choose to file an Amended Complaint, it must be complete by

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itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim not re-

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alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v.

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Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

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pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.

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2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

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amended pleading may be “considered waived if not repled.”).

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3.

The Clerk of Court is directed to mail Plaintiff a court approved form civil

rights complaint.
IT IS SO ORDERED.
Dated: June 12, 2018

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