Underwood v. Lampert et al

Filing 9

ORDER: IT IS ORDERED that Plaintiffs Motion to Amend 5 is GRANTED. The Clerk of the Court is DIRECTED to detach Plaintiffs Proposed Amended Complaint from his motion and file it in the Court record. IT IS FURTHER ORDERED that Plaintiffs Amended C omplaint is DISMISSED as to Defendants Eric Johansen and Iva Osman, and Plaintiffs Motion for Preliminary Injunction 7 is DENIED. Plaintiff may file a Second Amended Complaint, curing the deficiencies noted above, within 30 days of the date of th is Order. In the absence of a Second Amended Complaint, this action shall proceed against Defendants Nooth and Rochester only. Signed on 8/8/2016 by Judge Marco A. Hernandez. (copy mailed to plaintiff) (copy emailed to Shannon Vincent and Julie Marten) (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DENNIS BURTON UNDERWOOD,

Case No. 2:16-cv-01321-PK

ORDER

Plaintiff,
v.
ROBERT LAMPERT, and MRS.
ROCHESTER,
Defendants.

HERNANDEZ, District Judge:
Plaintiff, an inmate at Snake River Correctional Institution (SRCI), brings this civil rights
action pursuant to 42 U .S.C. § 1983. This Court granted Plaintiffs Application to Proceed In Forma

Pauperis. Currently before the Court are Plaintiffs Complaint (ECF No. 2), Motion to Amend the
Complaint (ECF No. 5), and Motion for Preliminary Injunction (ECF No. 7).

BACKGROUND
Plaintiff is currently incarcerated pursuant to his conviction for Assault in the Second Degree.
Plaintiff allegedly appealed his conviction and, as of July 8, 2016, he is proceeding prose on appeal.
On July 14, 2016, Plaintiff signed his Motion for Preliminary Injunction, wherein he states that his
appellate transcript is due in 30 days. Plaintiff complains that Assistant Public Defender Eric

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Johansen and Iva Osman, a transcriber, have delayed filing the appellate transcript, and he needs
additional library time and funds for photocopies to enable him to file his appellate brief in a timely
manner. Although Plaintiff does not disclose the filing deadline for his appellate brief, he alleges that
the usual briefing schedule is 49 days, and that Defendant Johansen set up an "11 month briefing
schedule for the opening brief to be due" before he withdrew as counsel.

DISCUSSION
I.

Motion to Amend
Plaintiff filed his original Complaint on June 28, 2016, naming SRCI Superintendent Robert

Lampert and Law Library Coordinator Rochester as Defendants. Plaintiffs Complaint includes three
handwritten pages of facts detailing the nature of his library access, the legal issues he seeks to raise
on appeal, and his attempts to obtain relief through the prison grievance process. In his proposed
Amended Complaint, he seeks to add Superintendent Mark Nooth as a defendant in lieu of
Defendant Lampert, and to add his former appellate attorney and a transcriber as defendants. Plaintiff
attaches his proposed Amended Complaint, and moves the Court to treat his original Complaint as

"

an "addendum" to the Amended Complaint.
Pursuant to Federal Rule of Civil Procedure 15(a)(l), Plaintiff may amend his Complaint
once as a matter of course within 21 days after serving it. Defendants have yet to be served.
Accordingly, Plaintiffs Motion to Amend is granted. However, this Court declines to permit
Plaintiff to append his original Complaint to the Amended Complaint because it may result in
confusion regarding his allegations, and will make it more difficult for Defendants to frame a
responsive pleading. If Plaintiff seeks to augment the facts set forth in his Amended Complaint, he
may move the Court to file a second amended complaint which contains all of his facts and claims
for relief.

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II.

Order Dismissina= Amended Complaint in Part
A.

Standards

This Court must dismiss an action initiated by a prisoner seeking redress from a
governmental entity or officer or employee, if the Court determines that the action (i) is frivolous
or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
In order to state a claim, a plaintiff must allege facts which, when accepted as true, give rise
to a plausible inference that the defendants violated plaintiffs constitutional rights. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57 (2007). "A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678;
Moss v. US Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). "A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do." Iqbal, 556
U.S. at 678 (internal quotations omitted). Plaintiff is proceeding pro se, and therefore this Court
construes the pleadings liberally and affords Plaintiff the benefit of any doubt. Erickson v. Pardus,
551 U.S. 89, 94 (2007).
B.

Anaylsis

"Section 1983 provides a cause of action against any person who deprives an individual of
federally guaranteed rights 'under color' of state law." Filarsky v. Delia, 132 S.Ct. 1657, 1661
(2012) (quoting 42 U.S.C. § 1983). A private individual, whose conduct is fairly attributable to the
state, can be sued as a state actor under§ 1983. Id.; Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139
(9th Cir. 2012).

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Plaintiff fails to allege facts to support a reasonable inference that Defendant Johansen acted
under color of state law. On the contrary, a public defender "performing a lawyer's traditional
functions as counsel to a defendant in a criminal proceeding" does not act under color of state law.

Polk County v. Dodson, 454 U.S. 312, 325 ( 1981 ). Similarly, Plaintiff alleges no facts to support a
reasonable inference that Iva Osman, a transcriber hired to prepare the appellate transcript, acted
under color of state law. See Rushion v. NYS Division of Parole, No. 13-CV-4277, 2015 WL
5475605, *2 (E.D.N.Y. Sept. 15, 2015) (private stenographer who transcribes parole hearings not
a state actor); Burroughs Xv. Dorn, No. 13-CV-03609 (ARR)(LB), 2013 WL 3820673, *4
(E.D.N.Y. July 22, 2013) (court reporter employed by private corporation did not act under color of
state law). Accordingly, Plaintiffs Amended Complaint is dismissed as to Defendants Johansen and
Osman.

III.

Motion for Preliminary Injunction
Plaintiff moves the Court to compel Defendants to provide him a $50.00 budget to pay for

copying cost of "case summaries" and "assignments of error," to enable him to edit his appellate
brief in his prison cell. Additionally, he seeks to compel Defendants to provide him daily access to
the law library. Plaintiff complains that he currently is provided only three and one-half hours of
library access per week and he is unable to obtain priority access because he has not provided an
imminent due date for his brief. Plaintiff complains that he may have to request an extension of time
to file his appellate brief which will result in "spend[ing] more time in prison for a crime which he
is not guilty of." Complaint (ECF No. 2 at 5).

A.

Standards

A plaintiff seeking a preliminary injunction must establish that ( 1) he is likely to succeed on
the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the

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balance of equities tip in his favor; and (4) an injunction is in the public interest. Winter v. Natural

Res. Def Council, Inc., 555 U.S. 7, 20 (2008); see also League of Wilderness Defenders/Blue
Mountains Biodiversity Project v. Connaughton, 752 F .3d 755, 7 59 (9th Cir. 2014) (court may issue
injunction ifthere are serious questions going to the merits and the balance of hardships tip sharply
towards the plaintiff, provided he also shows there is a likelihood of irreparable injury and the
injunction is in the public interest). Where, as here, the plaintiff seeks a mandatory injunction which
goes beyond maintaining the status quo, he must demonstrate that "extreme or very serious damage
will result." Am. Freedom Defense Initiative v. King County, 796 F.3d 1165, 1173 (9th Cir. 2015)
(internal quotations omitted).

B.

Constitutional Ri1:ht of Access to the Courts

In Bounds v. Smith, 430 U.S. 817, 828 (1977), the Supreme Court held that "the fundamental
constitutional right of access to the courts requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries
or adequate assistance from persons trained in the law." However, prisoners do not have "an abstract,
freestanding right to a law library or legal assistance" and a prisoner "cannot establish relevant actual
injury simply by establishing that the prison's law library ... is subpar in some theoretical sense."

Lewis v. Casey, 518 U.S. 343, 351 (1996). Rather, a prisoner must demonstrate that he has suffered
actual injury to contemplated or existing litigation. Id. at 351-53; See Hebbe v. Pliler, 627 F.3d 338,
343-43 (9th Cir. 2010) (prisoner may state a claim if he was impermissibly denied the opportunity
to appeal his conviction).
In the instant proceeding, Plaintiff has failed to demonstrate that he is likely to succeed on
the merits of his access claim, or that he is likely to suffer irreparable harm in the absence of
preliminary relief. Because Plaintiff has not alleged when his appellate brief is due, he has failed to

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demonstrate that his current access to the law library or photocopies will hinder or prevent him from
filing his brief on time."Speculative injury does not constitute irreparable injury sufficient to warrant
granting a preliminary injunction." Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674
(9th Cir. 1988). Plaintiffs more tenuous assertion that his lack of adequate access will delay his
appeal which, in turn, will cause him to serve a prison term for a crime he did not commit, is not the
type of "actual injury" to court access that supports a claim under the authorities discussed above.
For all of these reasons, Plaintiffs Motion for Preliminary Injunction (ECF No. 7) is DENIED.

CONCLUSION
Based on the foregoing, IT IS ORDERED that Plaintiffs Motion to Amend (ECF No. 5) is
GRANTED. The Clerk of the Court is DIRECTED to detach Plaintiffs Proposed Amended
Complaint from his motion and file it in the Court record. IT IS FURTHER ORDERED that
Plaintiffs Amended Complaint is DISMISSED as to Defendants Eric Johansen and Iva Osman, and
Plaintiffs Motion for Preliminary Injunction (ECF No. 7) is DENIED.
Plaintiff may file a Second Amended Complaint, curing the deficiencies noted above, within
30 days of the date of this Order. In the absence of a Second Amended Complaint, this action shall
proceed against Defendants Nooth and Rochester only.
The Clerk of the Court is DIRECTED to send a copy of this order to Assistant Attorney
General Shannon M. Vincent.
IT IS SO ORDERED.
DATED this

_j_ day of August, 2016.
United States District Judge

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