(PC) Evans v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD A. EVANS, Case No. 1:19-cv-00226-DAD-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR 13 v. FAILURE TO STATE A CLAIM 14 S. SHERMAN, et al., (ECF No. 39) 15 Defendants. 16 FOURTEEN-DAY DEADLINE 17 18 Plaintiff Richard A. Evans (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action under 42 U.S.C. § 1983. On October 30, 2019, the Court 20 screened Plaintiff’s complaint and granted him leave to amend. (ECF No. 15.) Plaintiff’s first 21 amended complaint, filed on March 16, 2020, is currently before the Court for screening. (ECF 22 No. 39.) 23 I. Screening Requirement and Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 28 1 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 2 A complaint must contain “a short and plain statement of the claim showing that the 3 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 4 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 7 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 8 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 9 To survive screening, Plaintiff’s claims must be facially plausible, which requires 10 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 11 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. 12 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted 13 unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the 14 plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 15 II. Plaintiff’s Allegations 16 Plaintiff is currently housed at the California Substance Abuse Treatment Facility in 17 Corcoran, California, where the events in the amended complaint are alleged to have occurred. 18 Plaintiff names the following defendants: (1) S. Sherman; (2) Chief Deputy Warden T. Cisneros; 19 (3) Associate Warden A. Williams; (4) Associate Warden Brightwell; (5) Associate Warden S. 20 Marsh; (6) E-Yard Captain J. Ourique; (7) Senior Librarian V. Hampson; (8) E-Yard Librarian 21 Figueroa; (9) Librarian G. Burke; and (10) Correctional Counselor C. Mauldin. 22 Claim I 23 In Claim I, Plaintiff asserts a violation of his right of access to the court and litigation 24 copies. He alleges as follows: 25 • While on SATF E-Yard, I was subjected[to] multiple prejudicial acts and outrageous conduct, that resulted in my denial of access to court, deprived 26 me of the litigation copies necessary to initiate legal proceedings, respond to legal prosecution of misconduct, & to meet court deadlines on state and 27 federal cases. 28 • I have been subjected to denial of my litigation copies on multiple 1 occassions [sic], despite my showing of the need of the “advancing litigation” copies, by SATF E-Yard Librarian Figueroa. 2 • I have been subjected to harassment & retaliation, from SATF E-Yard 3 Librarian (Figueroa), & SATF Senior Librarian (V. Hampson), due to the administrative remedies I have filed, for denial of access to court. 4 • CDCR SATF has failed to recognize, consider, or acknowledge my 5 administrative remedies on SATF E-Yard Librarian and the SATF Senior Librarian. 6 • All of these factors altered all of my litigation and court proceedings, in the 7 state and federal court, which has deprived [me] of my due process rights. 8 (ECF No. 39 at 3, 5.) 9 Claim II 10 In Claim II, Plaintiff forwards a claim for denial of access to the court and denial of 11 litigation copies. He alleges as follows: 12 • Since I have been on F-Yard, I have been subjected to multiple prejudicial acts & outrageous conduct, that resulted in my denial of access to court, 13 depriving me of the litigation copies needed to initiate legal proceedings or prosecute misconduct, & to miss the state and the federal court deadlines. 14 • I have been subjected to denial of my litigation copies, on multiple 15 occasions, despite my showing of the need of the “advancing litigation” copies, by SATF Temporary Librarian G. Burke. 16 • I have been subjected to harassment & retaliation, from SATF F-Yard 17 Temporary Librarian (G. Burke), & SATF Senior Librarian (V. Hampson), due to filed administrative remedies on them. 18 • CDCR has failed to hire a [permanent] F & G Yard librarian at SATF. The 19 prior law library limitations of 2.5 days a week, decreased to 1.5 – CDCR SATF has also failed to recognize, consider, or acknowledge my 20 administrative remedies on SATF Level 2 law library limitations and librarians on F- and G-Yard. 21 • All of these factors altered all of my litigation proceedings, including the 22 court deadlines in the state and federal court, depriving me of my due process rights. 23 24 (ECF No. 1 at 5-6.) As relief, Plaintiff seeks a transfer and monetary damages. 25 III. Discussion 26 A. Federal Rule of Civil Procedure 8 27 Pursuant to Rule 8, a complaint must contain “a short and plain statement of the claim 28 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations are 1 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 2 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must set 3 forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 4 face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations are 5 accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556–57; Moss, 572 6 F.3d at 969. 7 As with his original complaint, Plaintiff’s amended complaint is short, but it is not a plain 8 statement of his claims. The allegations are conclusory, lacking sufficient factual detail to state a 9 claim for relief that is plausible on the face of the amended complaint. Indeed, the amended 10 complaint lacks a clear chronology of events and, as discussed below, does not include 11 allegations mentioning conduct by the majority of the named defendants in this action. Plaintiff 12 was previously advised of the Rule 8 pleading requirement, but he has been unable to cure the 13 identified deficiencies. 14 B. Linkage Requirement 15 The Civil Rights Act under which this action was filed provides: 16 Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States...to the deprivation of any rights, 17 privileges, or immunities secured by the Constitution...shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 18 19 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 20 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 21 Monell v. Dep't of Soc. Servs., 436 U.S. 658, (1978); Rizzo v. Goode, 423 U.S. 362, (1976). The 22 Ninth Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional 23 right, within the meaning of section 1983, if he does an affirmative act, participates in another's 24 affirmative acts or omits to perform an act which he is legally required to do that causes the 25 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978). 26 Plaintiff’s amended complaint fails to link Defendants Sherman, Cisneros, Williams, 27 Brightwell, Marsh, Ourique, and Maudlin to his factual allegations. Indeed, throughout the 28 complaint, Plaintiff either fails to link any of the named defendants in his allegations or simply 1 lumps all defendants together. As pled, Plaintiff’s amended complaint makes it impossible for 2 the Court to draw the necessary connection between the actions or omissions of Defendants 3 Sherman, Cisneros, Williams, Brightwell, Marsh, Ourique, and the alleged denial of Plaintiff’s 4 constitutional rights. Plaintiff has been unable to cure this deficiency. 5 C. First Amendment – Access to Courts 6 Plaintiff has a constitutional right of access to the courts, and prison officials may not 7 actively interfere with his right to litigate. Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 8 2001) overruled on other grounds as stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 9 2015). The right of access to the courts, however, is limited to non-frivolous direct criminal 10 appeals, habeas corpus proceedings, and § 1983 civil rights actions. Lewis v. Casey, 518 U.S. 11 343, 354–55 (1996). A claim “is frivolous where it lacks an arguable basis either in law or in 12 fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). 13 In order to frame a claim of a denial of the right to access the courts, a prisoner must 14 allege facts showing that he has suffered “actual injury,” a jurisdictional requirement derived 15 from the standing doctrine. Lewis, 518 U.S. at 349. An “actual injury” is “actual prejudice with 16 respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to 17 present a claim.” Lewis, 518 U.S. at 348 (citation and internal quotations omitted); see also 18 Alvarez v. Hill, 518 F.3d 1152, 1155 n. 1 (9th Cir. 2008) (finding that district properly granted 19 summary judgment because prisoner had no “allege[d] injury, such as inability to file a complaint 20 or defend against a charge” resulting from deficiencies in access to legal materials) (quoting 21 Lewis, 518 U.S. at 353 & 353 n. 4). 22 Here, as with his original complaint, Plaintiff’s amended complaint fails to state a 23 cognizable claim for denial of access to court. Plaintiff’s amended complaint does not state 24 sufficient facts to demonstrate that he was pursuing a non-frivolous direct criminal appeal, habeas 25 corpus proceeding, or § 1983 action. 26 Even if Plaintiff’s allegations concern a direct criminal appeal, habeas corpus proceeding, 27 or § 1983 action, the amended complaint does not state facts sufficient for the Court to determine 28 whether any such court action was nonfrivolous. Plaintiff also fails to state what happened in 1 cases where he is claiming a denial of court access, and although he alleges that he suffered harm, 2 his conclusory statements are insufficient to support a claim. 3 D. First Amendment - Retaliation 4 Plaintiff’s amended complaint implicates a claim for retaliation. Allegations of retaliation 5 against a prisoner’s First Amendment rights to speech or to petition the government may support 6 a section 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011); Rizzo v. Dawson, 7 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F. 2d 1135 (9th Cir. 8 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable 9 claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state 10 actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected 11 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 12 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 13 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 14 2012); Silva, 658 at 1104; Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 15 Plaintiff fails to state a cognizable claim for relief based on retaliation in violation of his 16 First Amendment rights. Plaintiff’s allegations are insufficient to demonstrate that any defendant 17 took an adverse action against him because of any protected conduct, and he fails to link any 18 defendant to this alleged conduct. There also is no indication that the copies or limitations on 19 library access were not properly denied consistent with legitimate correctional goals. Plaintiff has 20 been unable to cure this deficiency. 21 E. Administrative Appeals/Grievances 22 Plaintiff cannot pursue any claims against prison staff based solely on the processing and 23 review of his inmate appeals. Plaintiff does not have a constitutionally protected right to have his 24 appeals accepted or processed. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. 25 Adams, 855 F.2d 639, 640 (9th Cir.19 88). The prison grievance procedure does not confer any 26 substantive rights upon inmates and actions in reviewing appeals cannot serve as a basis for 27 liability under section 1983. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993); see also 28 Wright v. Shannon, No. 1:05-cv-01485-LJO-YNP PC, 2010 WL 445203, at *5 (E.D. Cal. Feb. 2, 1 2010) (plaintiff’s allegations that prison officials denied or ignored his inmate appeals failed to 2 state a cognizable claim under the First Amendment). Denial or refusal to process a prison 3 grievance is not a constitutional violation. Rushdan v. Gear, No. 1:16-cv-01017-BAM (PC), 2018 4 WL 2229259, at *6 (E.D. Cal. May 16, 2018). Accordingly, Plaintiff fails to state a cognizable 5 claim arising out of the screening, investigation or processing of his grievances or complaints. 6 IV. Conclusion and Recommendations 7 Plaintiff’s amended complaint fails to comply with Federal Rule of Civil Procedure 8 and 8 fails to state a cognizable claim upon which relief may be granted. Despite being provided with 9 the relevant pleading and legal standards, Plaintiff has been unable to cure the deficiencies in his 10 complaint. Further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th 11 Cir. 2000). Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed based 12 on Plaintiff’s failure to state a claim upon which relief may be granted. 13 These Findings and Recommendation will be submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 15 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 16 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 17 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 18 specified time may result in the waiver of the “right to challenge the magistrate’s factual 19 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 20 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 IT IS SO ORDERED. 22 23 Dated: April 21, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28