Evans v. Willis et al

Filing 4

ORDER DISMISSING CASE for failure to state a claim upon which relief can be granted. The Court certifies that an appeal of this Court's Order would not be taken in good faith. Signed by Judge S Arthur Spiegel on 7/7/2009. (km1, ) (Additional attachment(s) added on 7/7/2009: # 1 Certified Mail Receipt) (km1, ).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO WESTERN DIVISION HUGH NEAL EVANS, Plaintiff vs LT. CHRIS WILLIS, et al., Defendants ORDER Case No. 1:09-cv-457 Spiegel, J. Hogan, M.J.

Plaintiff, an inmate at the Clermont County, Ohio Jail in Batavia, Ohio, brings this civil rights action pursuant to 42 U.S.C. § 1983 alleging a violation of his rights. By separate Order issued this date, plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court for a sua sponte review of plaintiff's complaint to determine whether the complaint, or any portion of it, should be dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). In enacting the original in forma pauperis statute, Congress recognized that a "litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see 28 U.S.C. §§ 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 32829 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no

arguable legal basis when the defendant is immune from suit or when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise to the level of the irrational or "wholly incredible." Denton v. Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898 F.2d at 1199. Congress has also authorized the dismissal of complaints which fail to state a claim upon which relief may be granted or which seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915 (e)(2)(B)(ii-iii); 1915A(b)(1-2). In order to state a claim for relief under 42 U.S.C. § 1983, plaintiff must allege that the persons engaging in the conduct complained of were acting under color of state law and that this conduct deprived plaintiff of some right secured by the Constitution or laws of the United States. Graham v. National Collegiate Athletic Ass'n, 804 F.2d 953, 957 (6th Cir. 1986) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 517 (1984)). Plaintiff's complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests," Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted); Wysong v. Dow Chemical Co., 503 F.3d 441, 446 (6th Cir. 2007), and provide "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). Plaintiff, who is proceeding pro se, brings this action against the supervisor of the Clermont County Jail and others. Plaintiff alleges their is no law library or access to legal materials at the jail and that defendants have failed to remedy the situation. In response to his grievance, plaintiff was advised, "While incarcerated at the Clermont County Jail your legal representation is the Public Defender's Office. This is a `free' call from any housing unit 2

telephone." (Complaint, grievance of 6/21/09). Plaintiff seeks monetary relief and a Court order requiring jail officials to install a law library at the jail. Plaintiff's complaint fails to state a claim for relief for a denial of access to the courts under the First Amendment. While prisoners have a constitutional right of access to the courts, Bounds v. Smith, 430 U.S. 817, 821 (1977), they have no constitutionally protected right of access to a law library. Lewis v. Casey, 518 U.S. 343, 350-51 (1996). The right of access to the courts does not guarantee access to a prison law library. Id.; Bounds v. Smith, 430 U.S. 817, 830-31 (1977); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985). When an inmate alleges his access to the courts was denied because he was denied access to the prison library or certain books, he fails to state a claim for relief absent any showing of prejudice to his litigation. Lewis, 518 U.S. at 351; Walker, 771 F.2d at 932. "An inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense. That would be the precise analog of the healthy inmate claiming constitutional violation because of the inadequacy of the prison infirmary." Lewis, 518 U.S. at 351. Rather, an inmate must plead and demonstrate that the shortcomings in the prison legal assistance program or lack of legal materials have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal claim. Lewis, 518 U.S. at 351-353; see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). "Examples of actual prejudice to pending or contemplated litigation include having a case dismissed, being unable to file a complaint, and missing a court-imposed deadline." Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005). The Supreme Court has recently held that in bringing a denial of access to the courts claim, "the underlying cause of action, whether anticipated or lost, is an element that must be 3

described in the complaint, just as much as allegations must describe the official acts frustrating the litigation." Christopher v. Harbury, 536 U.S. 403, 415 (2002). In addition, "the predicate claim (must) be described well enough to apply the `nonfrivolous' test and to show that the `arguable' nature of the underlying claim is more than hope." Id. In other words, "only prisoners with non-frivolous underlying claims can have standing to litigate an access-to-courts action." Hadix v. Johnson, 182 F.3d 400, 405-406 (6th Cir. 1999) (citing Lewis, 518 U.S. at 353 & n. 3). Plaintiff fails to allege any facts showing that he suffered any actual injury as a result of the alleged failure of the Clermont County Jail to have a law library. He has not alleged facts showing he has been unable to file court pleadings, missed court deadlines, or had a case dismissed in any nonfrivolous legal proceeding because of the alleged lack of a law library at the Clermont County Jail. Without such allegations, plaintiff's complaint fails to state a claim for relief for a denial of access to the courts under the First Amendment. Accordingly, it is hereby ORDERED that plaintiff's complaint is DISMISSED for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of this Court's Order would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Date: July 7, 2009 s/S. Arthur Spiegel S. Arthur Spiegel, Senior Judge United States District Court

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