Carley v. Gentry et al

Filing 74

ORDER that Plaintiff's motion for leave to file her proposed SAC (ECF No. 53 ) is granted; Defendants' motion to dismiss (ECF No. 32 ) is denied as moot; Clerk directed to file the SAC (ECF Nos. 53 -1, 53 -2, 53 -3). Signed by Chief Judge Miranda M. Du on 12/4/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ELIZABETH CARLEY,

Case No. 2:17-cv-02670-MMD-VCF

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Plaintiff,

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WARDEN JO GENTRY, et al.,
Defendants.

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ORDER

v.

I.

SUMMARY

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Pro se Plaintiff Elizabeth Carley, who is incarcerated and in the custody of the

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Nevada Department of Corrections (“NDOC”), sued various prison officials under 42

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U.S.C. § 1983 for allegedly impeding her access to the courts. (ECF No. 27.) Before the

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Court are two motions: Plaintiff’s motion for leave to file a second amended complaint

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(“SAC”) (ECF No. 53 (“Motion to Amend”)); and Defendants’ motion to dismiss Plaintiff’s

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first amended complaint (“FAC”) (ECF No. 32 (“Motion to Dismiss”)).1 Both because

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motions seeking leave to amend should be liberally granted, and Plaintiff’s proposed

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amendments in her SAC are not necessarily futile, the Court will grant Plaintiff’s Motion

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to Amend. The Court will therefore deny Defendants’ Motion to Dismiss as moot.

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II.

BACKGROUND

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The Court construes Plaintiff’s case as comprising a single claim for denial of her

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constitutional right of access to the courts. (ECF No. 27.) Her primary factual allegations

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supporting this claim relate to NDOC’s denial for over a year of her requests to correspond

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with her co-defendant in her underlying criminal case without NDOC officials opening their

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mail. (Id. at 4-9.) She refers to this as ‘inmate-to-inmate correspondence’ (“I2I

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Court reviewed the parties’ responses and replies to both motions, as well as
the corresponding joinders. (ECF Nos. 35, 36, 38, 40, 41, 55, 58.)

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Correspondence”).2 (Id. at 3.) She alleges the NDOC’s denial of her requests for I2I

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Correspondence inhibited her ability to gather confidential materials from her co-

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defendant that she intended to—and eventually did—use to file habeas corpus petitions.

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(Id. at 5-9.) During the time period her requests for I2I Correspondence were denied, she

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filed an unsuccessful state habeas corpus petition. (Id. at 5-9.) Once her request for I2I

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Correspondence was granted in 2016, she was able to get materials from her co-

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defendant in her underlying criminal case. She used those materials to file a federal

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habeas corpus petition that has not yet been adjudicated.3 (Id. at 9.) She explains how

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the materials she was eventually able to gather from her co-defendant in her underlying

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criminal case support her claims that the Nevada Supreme Court rejected in her state

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habeas petition. (Id. at 9-12.) Thus, Plaintiff alleges that her state habeas petition would

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have succeeded if she had been able to get those materials from her co-defendant during

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the time period her requests for I2I Correspondence were denied. (Id. at 12.)

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Plaintiff also alleges that NDOC officials at the Florence McClure Women's

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Correctional Center (“FMWCC”), where she is housed, do not allow her sufficient access

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to the prison law library. (ECF No. 27 at 5-7.) She adds many allegations to this effect in

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her proposed SAC. (ECF Nos. 53-1, 53-2, 53-3.) She more specifically alleges that

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supervisor Ruiz and other personnel deter her from using the library and filing documents

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in her cases, there are no books, the assistants who work there are untrained, and there

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is inadequate information available about how to prepare petitions for post-conviction

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relief. (ECF No. 27 at 5.)

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2When

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she first applied for I2I Correspondence on January 4, 2013, her request
was granted. (ECF No. 27 at 4.) But then she was told she had to re-apply when her codefendant was moved to a different prison. (Id.) She did, but her request was denied on
January 6, 2015. (Id.) Her requests and related grievances were continually denied for
some time. (Id. at 4-9.) On March 31, 2016, one of her requests for I2I Correspondence
was granted, and she was allowed to correspond with her co-defendant in her underlying
criminal case without her mail being opened by prison officials. (Id. at 9.)

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3Carley

v. Nevens, Case No. 2:16-cv-02227-JAD-BNW (D. Nev. Filed Sept. 21,

2016).
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Plaintiff was previously granted leave to amend her complaint (ECF No. 26), which

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made her FAC the operative complaint (ECF No. 27). Judge Ferenbach granted her leave

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to file her FAC both because she was entitled to as of right, and she added factual

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allegations to her original complaint that previously had passed screening. (ECF No. 26

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at 2.) She also added that she was suing the named defendants in their personal

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capacities. (Id.) Thus, Judge Ferenbach found she stated colorable claims and directed

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the Clerk of Court to file her FAC. (Id.)

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In her Motion to Amend, Plaintiff seeks to amend her FAC to: (1) make it more

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clear that the underlying claim in her access to the courts claim is her unsuccessful state

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habeas petition, which would have been successful if she was able to get the documents

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she has now, and had unrestricted access to the law library; (2) to name additional

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defendants who supervise the law library; (3) to add more factual details about her alleged

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restricted access to the law library. (ECF No. 53 at 1-3.)
III.

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LEGAL STANDARD

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Fed. R. Civ. P. 15 (“Rule 15”) allows amendment only by leave of the court once

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responsive pleadings have been filed and in the absence of the adverse party=s written

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consent. See Fed. R. Civ. P. 15(a). The Court has discretion to grant leave and should

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freely do so when justice so requires. Allen v. City of Beverly Hills, 911 F.2d 367, 373

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(9th Cir. 1990) (quoting Fed. R. Civ. P. 15(a)). “In exercising its discretion, ‘a court must

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be guided by the underlying purpose of Rule 15—to facilitate a decision on the merits

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rather than on the pleadings or technicalities. DCD Programs, Ltd. v. Leighton, 833 F.2d

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183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir.

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1981)). Nonetheless, the Court may deny leave to amend if: (1) it will cause undue delay;

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(2) it will cause undue prejudice to the opposing party; (3) the request is made in bad

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faith; (4) the party has repeatedly failed to cure deficiencies; or (5) the amendment would

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be futile. See Leadsinger, Inc. v. BMG Music Publ=g, 512 F.3d 522, 532 (9th Cir. 2008).

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IV.

DISCUSSSION

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Plaintiff argues the Court should grant her Motion to Amend because she filed it in

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good faith as soon as she was able, before the deadline specified in the scheduling order,

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and because she adds factual allegations and defendants in response to the deficiencies

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that Defendants pointed out in their Motion to Dismiss her FAC. (ECF No. 53.) Defendants

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respond that her proposed amendments are futile, arguing that the SAC does not cure

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the deficiencies forming the basis of their Motion to Dismiss—that Plaintiff’s access to the

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courts claim is noncognizable because she has not alleged the loss of a nonfrivolous

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claim, and NDOC officials are entitled to qualified immunity in any event because Plaintiff

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has no clearly-established right to correspond with other prisoners under these

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circumstances. (ECF No. 55.) But “[a]mendment is futile only if no set of facts can be

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proven under the amendment that would constitute a valid and sufficient claim.” Stebbins

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v. Geico Ins. Agency, Case No. 2:18-cv-00590-APG-GWF, 2019 WL 281281, at *4 (D.

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Nev. Jan. 22, 2019) (citation omitted). The Court thus agrees with Plaintiff that the Court

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should grant her leave to amend here, especially given Rule 15’s edict that leave should

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be freely given. The Court first addresses below Defendants’ argument that Plaintiff fails

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to state a claim, and then their qualified immunity argument.

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a. Access to the Courts Claim

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The Court is not persuaded that Plaintiff’s proposed SAC fails to state an access

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to the courts claim because she does not allege the loss of a nonfrivolous claim. (ECF

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No. 55 at 3-4.) Defendants more specifically argue that—despite Plaintiff’s claim that her

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state habeas cases were dismissed because her requests for I2I Correspondence were

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denied for some time—she was successful in raising her underlying claim in her federal

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habeas petition. (Id. at 3-4.)

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To state an access to the courts claim, a plaintiff must allege that she: (1) was, or

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is suffering “actual injury” by being “frustrated” or “impeded;” (2) in bringing a non-frivolous

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claim; (3) about her criminal conviction or sentence, or the conditions of her confinement.

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See Lewis v. Casey, 518 U.S. 343, 351-53 (1996).
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The Court cannot find that it would be futile to permit Plaintiff to proceed on her

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SAC, because the allegations in her proposed SAC are consistent with these

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requirements. See id. While the Court cannot say at this stage whether Plaintiff’s state

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habeas case was non-frivolous, the Court can certainly say that she has alleged it was.

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(ECF No. 53-1 at 14-17.) And that is sufficient at this stage. Further, Plaintiff alleges the

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denial of her request for I2I Correspondence at least impeded her state habeas claims,

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which are claims about the validity of her criminal conviction. The Court is further

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unpersuaded by Defendants’ argument that Plaintiff was successful in raising her

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underlying claim in her federal habeas petition, because she may have lost the ability to

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raise certain claims as a result of their dismissal during the state-court habeas process.4

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In addition, accepting Plaintiff’s factual allegations regarding restrictions on access to the

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law library as true, they buttress Plaintiff’s claim that restrictions on her access to the

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courts resulted in the dismissal of her state habeas claims. Thus, the Court does find

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Plaintiff’s proposed amendments in her SAC futile, because facts consistent with her

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allegations could state a cognizable access to the courts claim.
b. Qualified Immunity

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The Court disagrees with Defendants that the qualified immunity doctrine renders

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Plaintiff’s proposed SAC futile. Defendants’ argument is that the administrative regulation

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governing I2I Correspondence has never been declared unconstitutional, so even if

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Defendants applied the policy incorrectly, they are entitled to qualified immunity. (ECF

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Nos. 55 at 4-5, 32 at 5-9.) However, Plaintiff’s allegation is not merely that they applied

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the policy incorrectly—it is that Defendants relied on the policy to deny her requests for

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I2I Correspondence even though they knew she was entitled to it, or, said otherwise, that

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they intentionally misapplied the policy to inhibit her correspondence with her co-

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defendant in her underlying criminal case. (ECF No. 53-1 at 5-12.) Defendants’ argument

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therefore does not really address Plaintiff’s allegations. Thus, the Court does not find

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Defendants rely on Harris v. Velo-Lopez, Case No. 115CV01629MJSPC,
2016 WL 5943899, at *3 (E.D. Cal. Oct. 12, 2016), aff’d, 691 F. App’x 846 (9th Cir. 2017),
that decision does not bind this Court. (ECF No. 55 at 4 n. 1.)
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Defendants’ qualified immunity argument presents a sufficient reason to deny Plaintiff’s

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Motion to Amend.

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In sum, in light of Rule 15’s presumption favoring amendment, and having rejected

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Defendants’ arguments against amendment, the Court will grant Plaintiff’s motion for

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leave to file her proposed SAC. Because Defendants’ Motion to Dismiss attacked the

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FAC, the Court will deny the Motion to Dismiss as moot.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of the

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motions before the Court.

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It is therefore ordered that Plaintiff’s motion for leave to file her proposed SAC

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(ECF No. 53) is granted. Plaintiff may proceed with her single access to the courts claim

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alleged in her proposed SAC.
It is further ordered that Defendants’ motion to dismiss (ECF No. 32) is denied as

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moot.

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The Clerk of Court is directed to file the SAC (ECF Nos. 53-1, 53-2, 53-3).

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DATED THIS 4th day of December 2019.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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