Penton v. Pool, No. 15-17216

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Parties: ANTHONY PENTON, Plaintiff-Appellant, v. K. POOL; et al., Defendants-Appellees.
• Docket Number: No. 15-17216
• Decision Date: 09 February 2018

ANTHONY PENTON, Plaintiff-Appellant,
v.
K. POOL; et al., Defendants-Appellees.

No. 15-17216

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: October 20, 2017
February 9, 2018

NOT FOR PUBLICATION

D.C. No. 2:11-cv-00518-GEB-KJN

MEMORANDUM^*

Appeal from the United States District Court for the Eastern District of California
Kendall J. Newman, Magistrate Judge, Presiding

Argued and Submitted October 20, 2017 San Francisco, California

Before: WALLACE and CALLAHAN, Circuit Judges, and RESTANI,^** Judge.

Plaintiff-Appellant Anthony Penton seeks reversal of the district court's dismissal of his 42 U.S.C. § 1983 action against Defendants-Appellees prison officials for constitutional violations, and reversal of the district court's denial of leave to amend his second amended complaint ("SAC"). Because Penton pled an

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actionable access-to-courts claim in his First Amended Complaint ("FAC"), and because the district court erred in dismissing Penton's action for failure to effect service of process on his SAC, we REVERSE the district court's dismissal of Penton's FAC and its subsequent dismissal of Penton's action under Federal Rule of Civil Procedure 4(m), and REMAND for Penton's § 1983 action to proceed.

I.

Penton's grievance has its genesis in a 52-year sentence, issued in 2000, for robbery. Penton timely filed a petition for a writ of habeas corpus in federal district court in the Southern District of California (hereafter the "habeas court") challenging his sentence, which that court denied. Penton argued that his sentence was unconstitutional under Cunningham v. California, 549 U.S. 270, 288-93 (2007), see Penton v. Kernan, 528 F. Supp. 2d 1020, 1049-51 (S.D. Cal. 2007), which declared California's Determinate Sentencing Law ("DSL") to be unconstitutional. This court subsequently held that Cunningham applies retroactively, thereby making it applicable to Penton. Butler v. Curry, 528 F.3d 624, 639 (9th Cir. 2008). The application of the DSL to Penton is responsible for perhaps ten years of his sentence.

On August 31, 2007, the magistrate judge in Penton's habeas action issued a report recommending denial of Penton's petition, and gave him an opportunity to object. Penton, 528 F. Supp. 2d at 1058. To research his objection, Penton sought

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access to the prison law library, but Defendant J. Bradford denied him access. Having been obstructed in his efforts to conduct research, Penton filed a motion for an extension of time to file his objection, which the court granted, giving Penton until November 7, 2007 to file his objection. But because Penton's incoming mail was withheld, he only received notice of the extension on November 6. He filed another motion for an extension of time on November 6, but that motion never reached the habeas court because, Penton alleges, the prison sent it to the wrong court. Two days later, Penton was transferred to a Kentucky prison, and the clock ran out on Penton's time to object.

On December 20, 2007, the habeas court—unaware that Penton had sought an extension of time nearly seven weeks earlier—took up Penton's case, accepted the magistrate judge's report and recommendation, and denied him habeas relief. Because Penton's mail was withheld—in the end, for more than eight months—he did not receive notice of the habeas court's denial of his petition. Penton ultimately received his mail when he was returned to a California prison many months later, but by that time the window to appeal the court's denial of his petition had long since expired.

In 2011, Penton filed the instant 42 U.S.C. § 1983 action in federal court in the Eastern District of California (hereafter the "district court"), alleging that Defendant prison officials—who are located in the Eastern District—violated his

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constitutional rights by, among other things, withholding his mail for more than eight months, thereby hindering his ability to pursue his habeas action in the habeas court.

II.

Penton's matter is before us on the district court's dismissal of his § 1983 action without prejudice under Federal Rule of Civil Procedure 4(m) for failure to timely serve Defendant S. Nunez, who was first named in Penton's SAC. Because we have jurisdiction under 28 U.S.C. § 1291 to review the district court's final judgment, see Tie v. Orange Cnty., 152 F.3d 1109, 1111 (9th Cir. 1998), we also have jurisdiction to review the district court's interlocutory order dismissing Penton's FAC, Hall v. City of L.A., 697 F.3d 1059, 1070 (9th Cir. 2012).

We review the district court's Rule 12(b)(6) dismissal of Penton's FAC de novo, Los Angeles Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 800 (9th Cir. 2017), and construe the pleadings liberally as Penton is an inmate who proceeded pro se, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Because the district court considered documents attached to the complaint, we review facts in those documents together with the FAC itself. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

Penton's FAC asserts an access-to-courts claim based on wrongful interference with delivery of his mail. To pursue an access claim at the pleading

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stage, Penton must show that he has suffered an "actual injury" by plausibly alleging that a prison official interfered with his "capability of bringing contemplated challenges to sentences or conditions of confinement before the courts." Lewis v. Casey, 518 U.S. 343, 349, 353 n.3, 356 (1996). Satisfying this standard requires pleading that a prison official took some action that prevented Penton from having "'meaningful access' to the courts." Phillips v. Hust, 588 F.3d 652, 655-56 (9th Cir. 2009) (quoting Lewis, 518 U.S. at 351). Simply alleging a wrongful act in vacuo will not suffice. Lewis, 518 U.S. at 351. The "right at issue" is not "the...