Gil v. Yates, CASE NO. 1:09-cv-00917-GBC (PC)
| Decision Date | 04 May 2011 |
| Docket Number | CASE NO. 1:09-cv-00917-GBC (PC),ECF No. 34 |
| Parties | FRANCISCO J. GIL, Plaintiff, v. JAMES A. YATES, Defendants. |
| Court | U.S. District Court — Eastern District of California |
THIRD AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Plaintiff Francisco J. Gil ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action May 26, 2009 and he consented to Magistrate Judge jurisdiction on June 5, 2009. (ECF Nos. 1 & 5.) Plaintiff then filed a First Amended Complaint on December 7, 2009. (ECF No. 6.) This First Amended Complaint was dismissed with leave to amend on December 20, 2010 for failure to state a claim upon which relief could be granted. (ECF No. 19.) Plaintiff filed his Second Amended Complaint on April 7, 2011. (ECF No. 35.)The Second Amended Complaint is now before the Court for screening.
For the reasons set forth below, the Court finds that Plaintiff's Second Amended Complaint fails to state a claim upon which relief may be granted.
II. SCREENING REQUIREMENTS
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 or malicious," 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, or any 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).
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, 129 S.Ct. 1937, 1949 (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.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
III. SUMMARY OF COMPLAINT
Plaintiff brings this action for violations of his Fourteenth, Eighth, and First Amendments and a conspiracy claim. Plaintiff names the following individuals as Defendants: James A Yates, J. M. Woodend, MC Davis, H. Martinez, R. Shannon, C. Hudson, R. Galaviz, N. Grannis, and Hendricks.
Plaintiff alleges the following: On January 24, 2007, Plaintiff received a Rule Violation Report (RVR) for unauthorized possession of a controlled medication. Plaintiff was charged with unauthorized possession of a controlled substance at the hearing for the RVR which was held by Defendant Woodend. Despite the pharmacist's testimony that the substance was in fact a controlled medication, Defendant Woodend found Plaintiff guilty of possession of a controlled substance and sentenced him to an additional four months in prison. The Warden and Chief Appeals Coordinator upheld this ruling and sentence.
On February 20, 2009, Plaintiff was mistakenly shot by a correctional officer during a fight between two inmates. Plaintiff's appeals were refused. As a result of the unlawful disciplinary action, Plaintiff spent an additional six months in prison.
Plaintiff seeks monetary damages.
IV. ANALYSIS
The Civil Rights Act under which this action was filed provides:
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, 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.
42 U.S.C. § 1983. "Section 1983... creates a cause of action for violations of the federalConstitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted).
Plaintiff appears to be alleging that he was denied access to the courts by Defendants through their mishandling of his appeals.
Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). However, the right is limited to direct criminal appeals, habeas petitions, and civil rights actions. Id. at 354. Claims for denial of access to the courts may arise from the frustration or hindrance of "a litigating opportunity yet to be gained" (forward-looking access claim) or from the loss of a meritorious suit that cannot now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). Forward-looking claims allege "that systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits at the present time." Christopher, 536 U.S. at 413. In these cases that have yet to be litigated, "the justification for recognizing that [forward-looking] claim, is to place the plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been removed." Id. As part of the requirement to plead an injury, a plaintiff must allege that "a nonfrivolous legal claim had been frustrated or was being impeded." Lewis, 518 U.S. at 353; see also Christopher, 536 U.S. at 415. Simply stating that a claim is "nonfrivolous" due to the action of a government official will not satisfy the actual injury requirement. Christopher, 536 U.S. at 415. Rather, the nonfrivolous "underlying cause of action and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice to a defendant." Id. at 416. The plaintiff must describe this "predicate claim... well enough to apply the 'nonfrivolous' testand to show that the 'arguable' nature of the underlying claim is more than hope." Id. The complaint should "state the underlying claim in accordance with Federal Rule of Civil Procedure 8(a) just as if it were being independently pursued, and a like plain statement should describe any remedy available under the access claim and presently unique to it." Id. at 417-18; see Lewis, 518 U.S. at 353 n. 3 ( ).
When a prisoner asserts that he was denied access to the courts and seeks a remedy for a lost opportunity to present a legal claim, he must show: (1) the loss of a non-frivolous or arguable underlying claim; (2) the official acts that frustrated the litigation; and (3) a remedy that may be awarded as recompense but that is not otherwise available in a future suit. Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007) (citing Christopher, 536 U.S. at 413-414, overruled on other grounds, Hust v. Phillips, 129 S.Ct. 1036 (2009)).
The Court has difficulty discerning which facts Plaintiff is alleging in support of his denial of access to the courts claim. Plaintiff states that his 602 grievances have been mishandled. Having reviewed the allegations in the Complaint, the Court finds that Plaintiff has failed to state a claim for denial of access to the courts. Plaintiff fails to describe in detail any action that he has been unable to pursue and also fails to show how such action would not be frivolous. Thus, the Court dismisses this claim and will grant Plaintiff leave to amend this claim.
Plaintiff appears to be alleging a violation of his right to due process during the disciplinary hearing.
The Fourteenth Amendment extends the protections of the Fifth Amendment's Due Process Clause to the state. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Prisoners are entitled to certain processes before they are subjected to administrative or disciplinary hearings and classifications. For example, before being placed in disciplinary segregation, due process dictates that a prisoner is entitled to: (1) a written statement at least 24 hours before the disciplinary hearing that includes the charges, a description of the evidence against the prisoner, and an explanation for the disciplinary action taken; (2) an opportunity to present documentary evidence and call witnesses, unless calling witnesses would interfere with institutional security; and (3) legal assistance where the charges are complex or the inmate is illiterate. Id. at 563-70.
Plaintiff alleges that he was written up and charged with possession of a controlled substance (or medication). He then had a hearing conducted by Defendant Woodend. Plaintiff fails to allege any deficiency with the manner in which his disciplinary hearing was conducted. In fact, he says nothing of whether he received notice, if he was allowed to present evidence, how the hearing proceeded, etc. Plaintiff has therefore failed to state a Fourteenth Amendment claim. The Court will grant Plaintiff leave to amend this claim.
Though not explicitly stated, Plaintiff appears to be claiming that Defendants used excessive force in violation of his constitutional rights.
The analysis of an excessive force claim brought pursuant to Section 1983 begins with "identifying the specific constitutional right allegedly infringed by the challengedapplication of force." Graham v. Connor, 490 U.S. 386, 394 (1989). The Eighth Amendment's prohibition on cruel and unusual punishment...
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