Fosselman v. Hidalgo
| Decision Date | 18 February 2014 |
| Docket Number | Case No. 1:11 -cv-00575-AWI-MJS (PC) |
| Court | U.S. District Court — Eastern District of California |
| Parties | LORENZO FOSSELMAN, JR., Plaintiff, v. HIDALGO, et al., Defendants. |
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Before the Court for screening is Plaintiff's First Amended Complaint.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous, malicious," or that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, orany portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990), quoting 42 U.S.C. § 1983. Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim that is plausible on its face." Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id., at 667-68.
Plaintiff claims that while he was incarcerated at Wasco State Prison ("WSP") and Kern Valley State Prison ("KVSP"), he was retaliated against, deprived of legal property and law library access, and denied access to courts in violation of the FirstAmendment to the U.S. Constitution and state law. He seeks declaratory relief and monetary damages.
The Defendants are (1) Hildalgo, WSP Sergeant, (2) Berry, WSP Captain, (3) Ortega, WSP Correctional Counselor, (4) Olsen, KVSP Librarian, (5) Burrell, KVSP Librarian, (6) Does 1-5, California Department of Corrections and Rehabilitation ("CDCR") correctional officers.
More specifically, Plaintiff alleges that:
During a layover enroute to KVSP, prison guards placed him in segregated housing after learning he was involved in civil rights litigation. Defendants Hildalgo, Berry, Ortega and Does 1-5 negligently and/or intentionally lost, destroyed or confiscated a box of legal documents Plaintiff had with him.
Upon arriving at KVSP, Plaintiff was housed in AdSeg. He was told the placement was due to overcrowding, but it was not. He did not receive his other legal property (stored at KVSP) for a week. KVSP librarians, Defendants Olsen, Burrell and Does 1 denied him full physical access to the law library during race-based lockdowns.
Defendants' actions prevented Plaintiff from accessing the courts in two then pending cases, (1) a habeas petition, Fosselman v. Evans, E.D. Cal. Case No. 1:7-cv-812-LJO-GSA (appeal from denial of petition denied by the Ninth Circuit as untimely on April 26, 2010), and (2) a prisoner civil rights action, Fosselman v. Gibbs, et al., N.D. Cal. Case No. 1:06-cv-0375 PJH (PC) ().
Inmates have a fundamental right of access to the courts, for habeas and civil rights actions. Lewis v. Casey, 518 U.S. 343, 346-54 (1996). An inmate claiming denial of access to courts must show: 1) actual injury from the loss of a nonfrivolous or arguable underlying claim; 2) the official acts frustrating the litigation; and 3) a remedy that may be awarded as recompense but that is not otherwise available in a future suit.See Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). The complaint should state the underlying claim in accordance with Federal Rule of Civil Procedure 8(a). Id., at 417-18.
Review of Court records reveals that Plaintiff had meaningful access to the court in both Evans and Gibbs and that lack of success in those cases was not caused by Defendants.1 In Evans Plaintiff filed objections to the Findings and Recommendations denying his petition (Evans, ECF No. 31) prior to the December 3, 2008 entry of judgment dismissing the petition. (Evans, ECF. Nos. 31, 32.) Plaintiff received notice of the judgment of dismissal "some two weeks later" or "after December 12, 2008". (Evans, ECF No. 44, at 2:15-16.) His notice of appeal was due within 30 days of entry. Fed. R. App. 4(a). Nevertheless, he filed his notice of appeal late, on January 12, 2009, (Evans, ECF Nos. 34-35), and it was denied as untimely. (Evans, ECF No. 37.) His subsequent motions for reconsideration were denied on the merits. (Evans, ECF Nos. 38, 44.) The facts pled do not show Plaintiff's delay in filing his notice of appeal and his lack of success on motions for relief were due to any hindrance or frustration by Defendants. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991), citing Parratt v. Taylor, 451 U.S. 527, 535 (1981) (). Additionally, the district court refused to issue a certificate of appealability in Evans (Evans, ECF No. 32) because it could not characterize the appeal as non-frivolous and arguable.
The record in Gibbs shows that Plaintiff successfully filed necessary pleadings. See Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir. 1995) (). Although Plaintiff claims documents necessary to this casewere taken from him, he was provided copies of the allegedly missing documents two months before he filed his opposition to summary judgment and six months before the court ruled on the summary judgment motion. (Gibbs, ECF. Nos. 91, 97, 98, 117.) His motion for additional (Rule 56) discovery was denied on the merits. (Gibbs, ECF No. 102.) The court granted Defendants' motion for summary judgment on the merits. (Gibbs, ECF No. 103, 104.) His motion for reconsideration of summary judgment was denied on the merits. (Gibbs, ECF No. 117.) The grant of summary judgment was affirmed on appeal to the Ninth Circuit Court of Appeals.2
Plaintiff's advocacy prior to entry of trial court judgment is inconsistent with his claim that his right to access to the court was constitutionally interfered with. See McCree v. Grisson, 657 F.3d 623, 624 (7th Cir. 2011) (). Plaintiff does not show Defendants frustrated his legal claims in either the Gibbs action or the Evans action by denying him access to courts. Nor does he identify any other action in which he suffered actual injury from Defendants' denying him access to court.
Plaintiff's access to courts claim fails.
"Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because of (3) that inmate's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Plaintiff's contention Defendants retaliated for his filing of Gibbs is not factuallysupported, directly or circumstantially. Gibbs was filed almost three years prior to the events in issue; arose at a different facility (Salinas Valley State Prison); and did not involve any of the Defendants in this action. Plaintiff does not explain how Defendants' were aware of Plaintiff's filing of Gibbs or how they might have been motivated to retaliate against him because of it. The protected conduct must be a "substantial or motivating factor behind the [Defendants'] conduct." Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009), quoting Sorrano's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Plaintiff falls short of making this showing.
Even if Plaintiff had shown Defendants were motivated to retaliate for his protected conduct, he does not offer any basis to believe his segregated housing and law library access schedule was other than pursuant to and in furtherance of standard institutional process and procedures.
The allegations are not sufficient to support a retaliation claim.
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