(PC) Delphin v. Ross ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMY DELPHIN, No. 2:19-cv-0317 AC P 12 Plaintiff, 13 v. ORDER 14 ROSS, 15 Defendant. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF No. 2. Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 II. Statutory Screening of Prisoner Complaints 4 The court is required to screen complaints brought by prisoners seeking relief against “a 5 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 6 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 9 A claim “is [legally] frivolous when it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 12 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 15 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 16 Franklin, 745 F.2d at 1227-28 (citations omitted). 17 “Federal Rule of Civil Procedure 8(a)(2) requires only a ‘short and plain statement of the 18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain 27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 28 //// 1 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 10 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 11 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 12 III. Complaint 13 The complaint alleges that defendant Ross violated plaintiff’s rights under the First and 14 Fourteenth Amendments. In Claim I, plaintiff alleges his First Amendment right to petition the 15 government was violated when he was not provided writing materials to pursue his administrative 16 appeals, resulting in his appeal being denied as untimely. ECF No. 1 at 3. In Claim II, plaintiff 17 alleges his Fourteenth Amendment right to due process was violated when the prison and 18 unspecified individuals lost his personal property during a transfer. Id. at 4. 19 IV. Failure to State a Claim 20 A. Personal Involvement 21 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 22 connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 23 362, 370-71, 376 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). “Vague and 24 conclusory allegations of official participation in civil rights violations are not sufficient . . . .” 25 Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 26 Despite naming Ross as the sole defendant, plaintiff does not make any allegations against 27 him or any other specific person. Instead, he makes generalized allegations without identifying 28 the individuals who are responsible. Because it is unclear what actions, if any, were taken by 1 Ross, the facts as pled in the complaint do not show Ross was involved in the alleged 2 constitutional deprivations, and plaintiff fails to state a claim against Ross. 3 B. Grievances 4 Plaintiff’s asserted right to petition the government for the redress of grievances is well 5 established under the First Amendment. As recognized by the Ninth Circuit, “[o]f fundamental 6 import to prisoners are their First Amendment ‘right[s] to file prison grievances,’ and to ‘pursue 7 civil rights litigation in the courts.’ Without those bedrock constitutional guarantees, inmates 8 would be left with no viable mechanism to remedy prison injustices.” Rhodes v. Robinson, 408 9 F.3d 559, 567 (9th Cir. 2005) (second alteration in original) (footnote and internal citations 10 omitted). While prisoners do not have “a separate constitutional entitlement to a specific prison 11 grievance procedure,” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. 12 Adams, 855 F.2d 639, 640 (9th Cir. 1988)), they do have a constitutional right to petition, which 13 includes a right of access to the courts and to pursue available prison administrative remedies, 14 O’Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); see also Assyd v. Ariz. Dep’t of 15 Corr., 745 F. App’x 773, 774 (9th Cir. 2018) (“The district court erred by construing [the 16 allegation that an officer refused to accept prisoner’s grievance] as a due process claim rather than 17 a First Amendment claim.” (citing O’Keefe, 82 F.3d at 325)). “In order to establish that 18 government action has infringed on the constitutional right to petition the government, an 19 individual need not show that the government has directly interfered with the exercise of this 20 right.” O’Keefe, 82 F.3d at 325 (citation omitted). Instead, constitutional violations “may arise 21 from the deterrent, or ‘chilling,’ effect of governmental action,” and such an “unconstitutional 22 chill will only exist if the government action has injured the individual or places the individual in 23 immediate danger of sustaining a direct injury.” Id. (citation omitted). 24 In this case, plaintiff claims that he was deprived of his right to file a grievance when he 25 was sent to a crisis bed and not provided writing materials. ECF No. 1 at 3. Plaintiff’s ability to 26 file a grievance was directly interfered with because he was unable to pursue his administrative 27 appeals within the time constraints, and he suffered an actual injury when his appeal was denied 28 as untimely, which prevented him from getting reimbursed for his property. Id. at 3-4. However, 1 while the denial of writing supplies states a claim of relief, plaintiff does not clearly describe who 2 is responsible for the actions against him. It is unclear whether the same individual sent plaintiff 3 to the crisis bed, failed to supply him with writing materials, and denied his administrative appeal, 4 or whether these actions were carried out by separate individuals. It is also unclear which, if any, 5 of these actions was carried out by Ross.1 Because plaintiff does not state which actions Ross is 6 responsible for, he fails to state a cognizable claim against Ross. 7 C. Property Claim 8 The unauthorized deprivation of property by a prison official, whether intentional or 9 negligent, does not state a claim under § 1983 if the state provides an adequate post-deprivation 10 remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984). “California Law provides an adequate 11 post-deprivation remedy for any property deprivations.” Barnett v. Centoni, 31 F.3d 813, 816-17 12 (9th Cir. 1994) (per curiam) (citing Cal. Gov’t Code §§ 810-895). Therefore, only an intentional 13 and authorized deprivation of property may constitute an actionable § 1983 claim for violation of 14 the Due Process Clause. An authorized deprivation is one carried out pursuant to established 15 state procedures, regulations, or statutes. Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir. 16 1985). 17 In the instant case, plaintiff claims that the prison and unspecified individuals lost his 18 property and failed to compensate him for the lost property. ECF No. 1 at 4. Because the 19 property was lost, the deprivation was unauthorized and plaintiff’s property claim is not 20 cognizable against any individual. Furthermore, any claims against the prison itself are barred by 21 sovereign immunity. See Howlett v. Rose, 496 U.S. 356, 365 (1990). 22 V. Leave to Amend 23 If plaintiff chooses to file a first amended complaint, he must demonstrate how the 24 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo 25 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how 26 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th 27 1 The court notes that plaintiff identifies R as the “R.N.R. Sergeant,” ECF No. 1 at 2, presumably 28 meaning he was the “R&R” or receiving and release sergeant in charge of property. 1 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link 2 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 3 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 4 participation in civil rights violations are not sufficient . . . .” Ivey v. Bd. of Regents, 673 F.2d 5 266, 268 (9th Cir. 1982) (citations omitted). 6 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 7 his first amended complaint complete. Local Rule 220 requires that an amended complaint be 8 complete in itself without reference to any prior pleading. This is because, as a general rule, an 9 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 10 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 11 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 12 in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended 13 complaint, the original complaint no longer serves any function in the case. Therefore, in an 14 amended complaint, as in an original complaint, each claim and the involvement of each 15 defendant must be sufficiently alleged. 16 VI. Current Address 17 The Inmate Locator website operated by the California Department of Corrections and 18 Rehabilitation indicates that plaintiff is currently incarcerated at California State Prison, 19 Sacramento. The Clerk of the Court will therefore be directed to serve plaintiff at California State 20 Prison, Sacramento and at his address of record and plaintiff will be required to confirm his 21 current address. 22 VII. Plain Language Summary of this Order for a Pro Se Litigant 23 Your request to proceed in forma pauperis is granted and you are not required to pay the 24 entire filing fee immediately. 25 You are being given leave to amend because the facts you have alleged in the complaint 26 are not enough to state a claim for relief. Your claim that your ability to file a grievance was 27 interfered with fails to state a claim because you do not identify who did what. Your property 28 claim does not state a claim because the state provides an adequate post-deprivation remedy. You 1 | are being given a chance to amend the complaint to try and provide more information that would 2 || support a claim. 3 If you choose to amend your complaint, the first amended complaint must include all of 4 || the claims you want to make because the court will not look at the claims or information in the 5 || original complaint. Any claims and information not in the first amended complaint will not 6 || be considered. 7 In accordance with the above, IT IS HEREBY ORDERED that: 8 1. Plaintiffs request for leave to proceed in forma pauperis, ECF No. 2, is granted. 9 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 10 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 11 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 12 | Director of the California Department of Corrections and Rehabilitation filed concurrently 13 || herewith. 14 3. Plaintiffs complaint fails to state a claim upon which relief may be granted, see 28 15 | U.S.C. § 1915A, and will not be served. 16 4. Within thirty days from the date of service of this order, plaintiff may file an amended 17 || complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 18 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 19 | number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an 20 || original and two copies of the amended complaint. Failure to file an amended complaint in 21 || accordance with this order will result in a recommendation that this action be dismissed. 22 5. Within thirty days of the service of this order, plaintiff shall notify the court of his 23 || current address. 24 6. The Clerk of the Court is directed to serve plaintiff at both his address of record and at 25 || California State Prison, Sacramento, P.O. Box 290001, Represa, CA 95671. 26 || DATED: March 18, 2021 ~ 28 UNITED STATES MAGISTRATE JUDGE