Silva v. Vittorio

Decision Date08 December 2010
Docket NumberNo. 08–15620.,08–15620.
Citation11 Cal. Daily Op. Serv. 12255,658 F.3d 1090,2011 Daily Journal D.A.R. 14545
PartiesMatthew G. SILVA, Plaintiff–Appellant,v.Sara DI VITTORIO; James C. Miller; William Lucas; Scott Hatten; Corrections Corporation of America; Rob McKenna; Christine O. Gregoire; Harold Clarke; James Thatcher; Maggie Miller–Stout; Richard Hewson; Rainville; John Arnold; Lerch; Westfall; Renate Archer; John Ferguson; John Gay; Samuel Rogers; Napier; Mary Verdugo; Trans–Cor Corporation, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


Andrew M. Jacobs and Robert A. Bernheim, Snell & Wilmer L.L.P., Tucson, AZ, for plaintiff-appellant Matthew G. Silva.Robert M. McKenna, Attorney General, and Andrea Vingo, Assistant Attorney General, Olympia, WA, for the defendant-appellees.Appeal from the United States District Court for the District of Arizona, James A. Teilborg, District Judge, Presiding. D.C. No. 2:07–cv–01696–JAT–ECV.Before: DIARMUID F. O'SCANNLAIN and RICHARD A. PAEZ, Circuit Judges, and VIRGINIA M. KENDALL,** District Judge.Opinion by Judge KENDALL; Dissent by Judge O'SCANNLAIN.


KENDALL, District Judge:

Matthew Silva (Silva), a Washington State prisoner, appeals the district court's sua sponte dismissal of his pro se civil rights action for failure to state a claim upon which relief may be granted. We have jurisdiction under 28 U.S.C. § 1291 to review the district court's order dismissing Silva's first amended complaint without leave to amend and, for the reasons set forth below, we reverse in part, affirm in part, and remand to the district court for proceedings consistent with this opinion. Specifically, we reverse the district court's order dismissing Silva's right to access the courts, retaliation, and state law conversion claims and we affirm the district court's order dismissing Silva's RICO claim.

A. Silva's Complaint

On September 4, 2007, Silva filed a pro se civil rights complaint against Washington Assistant Attorney General Sara Olson, referred to on appeal as Sara Di Vittorio (Di Vittorio), and three Washington Department of Corrections (“WDOC”) and Corrections Corporation of America (Corrections Corporation) officials who work at the Florence Correctional Center (“FCC”), where Silva had previously been incarcerated. In his complaint, Silva sought relief under 42 U.S.C. § 1983 for alleged violations of his First and Fourteenth Amendment right of access to the courts. He also alleged supplemental state law claims for conversion and fraud. Along with his complaint, Silva moved to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).

The district court initially denied Silva's motion to proceed IFP, concluding that the Prisoner Litigation Reform Act's “three-strikes” provision barred his request to proceed IFP. See id. § 1915(g).1 The PLRA precludes a prisoner from proceeding IFP if, on three or more prior occasions, he filed an action or appeal that was dismissed because it was frivolous, malicious, or failed to state a claim upon which relief may be granted. Id. Citing Silva v. Washington, No. 2:98–cv–00659–WLD (W.D.Wash. Sept. 22, 1998); Silva v. Clarke, No. CV–05–414–MWL, 2006 WL 3246499 (E.D.Wash. Nov. 8, 2006); Silva v. Bush, No. C06–984–JLR (W.D.Wash. Apr. 16, 2007); and Silva v. Goddard, No. CV–06–02289–JAT (D.Ariz. Mar. 27, 2007), the district court concluded that at least three of the prior actions Silva had filed in federal court had been dismissed as frivolous, malicious, or because they failed to state a claim. The district court further found that because Silva was not under imminent danger of serious physical injury, the sole statutory exception to the “three-strikes” rule did not apply. See § 1915(g). Accordingly, the district court dismissed Silva's complaint without prejudice for failure to prepay the filing fee.

Silva moved to reconsider, arguing that two of the four cases the district court counted as strikes should not count against him because, at the time he filed his complaint, his appeals were still pending before this court. The district court agreed and granted Silva's motion to reconsider, vacated its earlier dismissal, and allowed Silva to proceed IFP.

As obligated under 28 U.S.C. § 1915A, the district court then screened Silva's complaint to determine whether he had a cognizable claim for relief. Without reaching the merits of Silva's claims, the district court dismissed Silva's complaint without prejudice because he had not used the district court's approved form for pro se prisoner complaints. The district court granted Silva leave to file a first amended complaint, warning him that if he did not follow the pleading requirements, “the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.”

B. Silva's first amended complaint

On January 16, 2008, Silva amended his complaint, this time suing Di Vittorio; Washington State Attorney General, Rob McKenna (McKenna); the Governor of Washington State, Christine Gregoire (Gregoire); a number of WDOC and Corrections Corporation officials; Corrections Corporation itself; and Trans–Cor Corporation, a prisoner transportation company (collectively the Defendants). In his first amended complaint (“amended complaint”), Silva reasserted his claim under § 1983 that the Defendants violated his First and Fourteenth Amendment right to access the courts and also alleged that the Defendants retaliated against him in violation of the First Amendment. Specifically, Silva alleged that as soon as he began pursuing civil rights lawsuits against prison officials, those officials began transferring him within and among prison facilities in Washington and Arizona and confiscating and destroying his legal documents and materials. According to Silva's amended complaint, the Defendants' actions proximately caused at least six cases to be dismissed, and hampered his ability to report the officials' misconduct and to bring any future cases.

In his amended complaint, Silva also added a claim under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961–1968. Silva alleged that his transfer to, and housing in, the FCC violated the RICO statute, specifically contending that the Defendants engaged in numerous instances of “racketeering activity” in violation of § 1961(1), including kidnapping, mail and wire fraud, witness tampering, and seizure of legal documents. Finally, Silva alleged that the Defendants' seizure of his legal files constituted conversion.2

Again the district court screened Silva's amended complaint pursuant to § 1915A, this time reaching the merits. The district court concluded that Silva's amended complaint failed to state a claim upon which relief could be granted and dismissed the case with prejudice. Specifically, citing Lancaster Community Hospital v. Antelope Valley Hospital District, 940 F.2d 397, 404 (9th Cir.1991), the district court determined that Silva failed to state a RICO claim because he failed to allege sufficient facts to establish a pattern of racketeering activity, he failed to allege an injury to his business or property, and because government entities cannot violate RICO. Additionally, the district court concluded that Silva's transfer to the FCC in Arizona did not constitute an act of “kidnapping” under § 1961(1).

As to Silva's right to access the courts claim, the district court stated that the right “is only a right to bring petitions or complaints to the federal court and not a right to discover such claims or even to litigate them effectively once filed with a court.” Because the factual allegations underlying Silva's access to courts claim were “targeted at his ability to effectively litigate his cases beyond the pleading stage” the district court determined that Silva failed to state a claim upon which relief could be granted.

The district court also found that Silva did not state a claim for retaliation because he failed to identify specific retaliatory acts carried out by specific defendants and failed to precisely describe his conduct that prompted the Defendants to retaliate against him. Finally, the district court concluded that, without the federal claims, it did not have diversity jurisdiction over Silva's claim for common law conversion because Silva failed to allege an amount in controversy in excess of $75,000. Stating that its “discretion to deny or grant leave to amend is particularly broad where Plaintiff has previously been permitted to amend his complaint,” and that the defects in Silva's amended complaint could not be corrected, the district court dismissed Silva's case without leave to amend.

C. Silva's appeal

Silva presents three issues on appeal. First, he argues that the district court erred by dismissing his claim for denial of the right to access the courts. Despite the statement in his amended complaint that the Defendants “had a duty under [the First and Fourteenth Amendments] to facilitate the specified civil actions,” Silva now acknowledges that prison officials have no affirmative duty to help him litigate his claims once they have been filed. See Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (holding that the Constitution does not require the State to “enable the prisoner to discover grievances, and to litigate effectively once in court) (emphasis in original); Cornett, 51 F.3d at 898 (the right to access the courts “requires a state to provide a law library or legal assistance only during the pleading stage of a habeas or civil rights action”). He argues instead that prisoners have a right under the First and Fourteenth Amendments to litigate lawsuits challenging their sentences or the conditions of their confinement to conclusion without active interference by prison officials. According to Silva, this right extends beyond the filing of an initial pleading.


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