3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 ELIZABETH CARLEY, Case No. 2:17-cv-02670-MMD-VCF
7 Plaintiff, ORDER v. 8 WARDEN JO GENTRY, et al., 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiff Elizabeth Carley, who is incarcerated and in the custody of the 13 Nevada Department of Corrections (“NDOC”), sued various prison officials under 42 14 U.S.C. § 1983 for allegedly impeding her access to the courts. (ECF No. 27.) Before the 15 Court are two motions: Plaintiff’s motion for leave to file a second amended complaint 16 (“SAC”) (ECF No. 53 (“Motion to Amend”)); and Defendants’ motion to dismiss Plaintiff’s 17 first amended complaint (“FAC”) (ECF No. 32 (“Motion to Dismiss”)).1 Both because 18 motions seeking leave to amend should be liberally granted, and Plaintiff’s proposed 19 amendments in her SAC are not necessarily futile, the Court will grant Plaintiff’s Motion 20 to Amend. The Court will therefore deny Defendants’ Motion to Dismiss as moot. 21 II. BACKGROUND 22 The Court construes Plaintiff’s case as comprising a single claim for denial of her 23 constitutional right of access to the courts. (ECF No. 27.) Her primary factual allegations 24 supporting this claim relate to NDOC’s denial for over a year of her requests to correspond 25 with her co-defendant in her underlying criminal case without NDOC officials opening their 26 mail. (Id. at 4-9.) She refers to this as ‘inmate-to-inmate correspondence’ (“I2I 27 1The Court reviewed the parties’ responses and replies to both motions, as well as 1 Correspondence”).2 (Id. at 3.) She alleges the NDOC’s denial of her requests for I2I 2 Correspondence inhibited her ability to gather confidential materials from her co- 3 defendant that she intended to—and eventually did—use to file habeas corpus petitions. 4 (Id. at 5-9.) During the time period her requests for I2I Correspondence were denied, she 5 filed an unsuccessful state habeas corpus petition. (Id. at 5-9.) Once her request for I2I 6 Correspondence was granted in 2016, she was able to get materials from her co- 7 defendant in her underlying criminal case. She used those materials to file a federal 8 habeas corpus petition that has not yet been adjudicated.3 (Id. at 9.) She explains how 9 the materials she was eventually able to gather from her co-defendant in her underlying 10 criminal case support her claims that the Nevada Supreme Court rejected in her state 11 habeas petition. (Id. at 9-12.) Thus, Plaintiff alleges that her state habeas petition would 12 have succeeded if she had been able to get those materials from her co-defendant during 13 the time period her requests for I2I Correspondence were denied. (Id. at 12.) 14 Plaintiff also alleges that NDOC officials at the Florence McClure Women's 15 Correctional Center (“FMWCC”), where she is housed, do not allow her sufficient access 16 to the prison law library. (ECF No. 27 at 5-7.) She adds many allegations to this effect in 17 her proposed SAC. (ECF Nos. 53-1, 53-2, 53-3.) She more specifically alleges that 18 supervisor Ruiz and other personnel deter her from using the library and filing documents 19 in her cases, there are no books, the assistants who work there are untrained, and there 20 is inadequate information available about how to prepare petitions for post-conviction 21 relief. (ECF No. 27 at 5.) 22 /// 23 2When she first applied for I2I Correspondence on January 4, 2013, her request 24 was granted. (ECF No. 27 at 4.) But then she was told she had to re-apply when her co- defendant was moved to a different prison. (Id.) She did, but her request was denied on 25 January 6, 2015. (Id.) Her requests and related grievances were continually denied for 26 some time. (Id. at 4-9.) On March 31, 2016, one of her requests for I2I Correspondence was granted, and she was allowed to correspond with her co-defendant in her underlying 27 criminal case without her mail being opened by prison officials. (Id. at 9.)
28 3Carley v. Nevens, Case No. 2:16-cv-02227-JAD-BNW (D. Nev. Filed Sept. 21, 1 Plaintiff was previously granted leave to amend her complaint (ECF No. 26), which 2 made her FAC the operative complaint (ECF No. 27). Judge Ferenbach granted her leave 3 to file her FAC both because she was entitled to as of right, and she added factual 4 allegations to her original complaint that previously had passed screening. (ECF No. 26 5 at 2.) She also added that she was suing the named defendants in their personal 6 capacities. (Id.) Thus, Judge Ferenbach found she stated colorable claims and directed 7 the Clerk of Court to file her FAC. (Id.) 8 In her Motion to Amend, Plaintiff seeks to amend her FAC to: (1) make it more 9 clear that the underlying claim in her access to the courts claim is her unsuccessful state 10 habeas petition, which would have been successful if she was able to get the documents 11 she has now, and had unrestricted access to the law library; (2) to name additional 12 defendants who supervise the law library; (3) to add more factual details about her alleged 13 restricted access to the law library. (ECF No. 53 at 1-3.) 14 III. LEGAL STANDARD 15 Fed. R. Civ. P. 15 (“Rule 15”) allows amendment only by leave of the court once 16 responsive pleadings have been filed and in the absence of the adverse party=s written 17 consent. See Fed. R. Civ. P. 15(a). The Court has discretion to grant leave and should 18 freely do so when justice so requires. Allen v. City of Beverly Hills, 911 F.2d 367, 373 19 (9th Cir. 1990) (quoting Fed. R. Civ. P. 15(a)). “In exercising its discretion, ‘a court must 20 be guided by the underlying purpose of Rule 15—to facilitate a decision on the merits 21 rather than on the pleadings or technicalities. DCD Programs, Ltd. v. Leighton, 833 F.2d 22 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 23 1981)). Nonetheless, the Court may deny leave to amend if: (1) it will cause undue delay; 24 (2) it will cause undue prejudice to the opposing party; (3) the request is made in bad 25 faith; (4) the party has repeatedly failed to cure deficiencies; or (5) the amendment would 26 be futile. See Leadsinger, Inc. v. BMG Music Publg, 512 F.3d 522, 532 (9th Cir. 2008). 27 /// 28 /// 1 IV. DISCUSSSION 2 Plaintiff argues the Court should grant her Motion to Amend because she filed it in 3 good faith as soon as she was able, before the deadline specified in the scheduling order, 4 and because she adds factual allegations and defendants in response to the deficiencies 5 that Defendants pointed out in their Motion to Dismiss her FAC. (ECF No. 53.) Defendants 6 respond that her proposed amendments are futile, arguing that the SAC does not cure 7 the deficiencies forming the basis of their Motion to Dismiss—that Plaintiff’s access to the 8 courts claim is noncognizable because she has not alleged the loss of a nonfrivolous 9 claim, and NDOC officials are entitled to qualified immunity in any event because Plaintiff 10 has no clearly-established right to correspond with other prisoners under these 11 circumstances. (ECF No. 55.) But “[a]mendment is futile only if no set of facts can be 12 proven under the amendment that would constitute a valid and sufficient claim.” Stebbins 13 v. Geico Ins. Agency, Case No.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 ELIZABETH CARLEY, Case No. 2:17-cv-02670-MMD-VCF
7 Plaintiff, ORDER v. 8 WARDEN JO GENTRY, et al., 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiff Elizabeth Carley, who is incarcerated and in the custody of the 13 Nevada Department of Corrections (“NDOC”), sued various prison officials under 42 14 U.S.C. § 1983 for allegedly impeding her access to the courts. (ECF No. 27.) Before the 15 Court are two motions: Plaintiff’s motion for leave to file a second amended complaint 16 (“SAC”) (ECF No. 53 (“Motion to Amend”)); and Defendants’ motion to dismiss Plaintiff’s 17 first amended complaint (“FAC”) (ECF No. 32 (“Motion to Dismiss”)).1 Both because 18 motions seeking leave to amend should be liberally granted, and Plaintiff’s proposed 19 amendments in her SAC are not necessarily futile, the Court will grant Plaintiff’s Motion 20 to Amend. The Court will therefore deny Defendants’ Motion to Dismiss as moot. 21 II. BACKGROUND 22 The Court construes Plaintiff’s case as comprising a single claim for denial of her 23 constitutional right of access to the courts. (ECF No. 27.) Her primary factual allegations 24 supporting this claim relate to NDOC’s denial for over a year of her requests to correspond 25 with her co-defendant in her underlying criminal case without NDOC officials opening their 26 mail. (Id. at 4-9.) She refers to this as ‘inmate-to-inmate correspondence’ (“I2I 27 1The Court reviewed the parties’ responses and replies to both motions, as well as 1 Correspondence”).2 (Id. at 3.) She alleges the NDOC’s denial of her requests for I2I 2 Correspondence inhibited her ability to gather confidential materials from her co- 3 defendant that she intended to—and eventually did—use to file habeas corpus petitions. 4 (Id. at 5-9.) During the time period her requests for I2I Correspondence were denied, she 5 filed an unsuccessful state habeas corpus petition. (Id. at 5-9.) Once her request for I2I 6 Correspondence was granted in 2016, she was able to get materials from her co- 7 defendant in her underlying criminal case. She used those materials to file a federal 8 habeas corpus petition that has not yet been adjudicated.3 (Id. at 9.) She explains how 9 the materials she was eventually able to gather from her co-defendant in her underlying 10 criminal case support her claims that the Nevada Supreme Court rejected in her state 11 habeas petition. (Id. at 9-12.) Thus, Plaintiff alleges that her state habeas petition would 12 have succeeded if she had been able to get those materials from her co-defendant during 13 the time period her requests for I2I Correspondence were denied. (Id. at 12.) 14 Plaintiff also alleges that NDOC officials at the Florence McClure Women's 15 Correctional Center (“FMWCC”), where she is housed, do not allow her sufficient access 16 to the prison law library. (ECF No. 27 at 5-7.) She adds many allegations to this effect in 17 her proposed SAC. (ECF Nos. 53-1, 53-2, 53-3.) She more specifically alleges that 18 supervisor Ruiz and other personnel deter her from using the library and filing documents 19 in her cases, there are no books, the assistants who work there are untrained, and there 20 is inadequate information available about how to prepare petitions for post-conviction 21 relief. (ECF No. 27 at 5.) 22 /// 23 2When she first applied for I2I Correspondence on January 4, 2013, her request 24 was granted. (ECF No. 27 at 4.) But then she was told she had to re-apply when her co- defendant was moved to a different prison. (Id.) She did, but her request was denied on 25 January 6, 2015. (Id.) Her requests and related grievances were continually denied for 26 some time. (Id. at 4-9.) On March 31, 2016, one of her requests for I2I Correspondence was granted, and she was allowed to correspond with her co-defendant in her underlying 27 criminal case without her mail being opened by prison officials. (Id. at 9.)
28 3Carley v. Nevens, Case No. 2:16-cv-02227-JAD-BNW (D. Nev. Filed Sept. 21, 1 Plaintiff was previously granted leave to amend her complaint (ECF No. 26), which 2 made her FAC the operative complaint (ECF No. 27). Judge Ferenbach granted her leave 3 to file her FAC both because she was entitled to as of right, and she added factual 4 allegations to her original complaint that previously had passed screening. (ECF No. 26 5 at 2.) She also added that she was suing the named defendants in their personal 6 capacities. (Id.) Thus, Judge Ferenbach found she stated colorable claims and directed 7 the Clerk of Court to file her FAC. (Id.) 8 In her Motion to Amend, Plaintiff seeks to amend her FAC to: (1) make it more 9 clear that the underlying claim in her access to the courts claim is her unsuccessful state 10 habeas petition, which would have been successful if she was able to get the documents 11 she has now, and had unrestricted access to the law library; (2) to name additional 12 defendants who supervise the law library; (3) to add more factual details about her alleged 13 restricted access to the law library. (ECF No. 53 at 1-3.) 14 III. LEGAL STANDARD 15 Fed. R. Civ. P. 15 (“Rule 15”) allows amendment only by leave of the court once 16 responsive pleadings have been filed and in the absence of the adverse party=s written 17 consent. See Fed. R. Civ. P. 15(a). The Court has discretion to grant leave and should 18 freely do so when justice so requires. Allen v. City of Beverly Hills, 911 F.2d 367, 373 19 (9th Cir. 1990) (quoting Fed. R. Civ. P. 15(a)). “In exercising its discretion, ‘a court must 20 be guided by the underlying purpose of Rule 15—to facilitate a decision on the merits 21 rather than on the pleadings or technicalities. DCD Programs, Ltd. v. Leighton, 833 F.2d 22 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 23 1981)). Nonetheless, the Court may deny leave to amend if: (1) it will cause undue delay; 24 (2) it will cause undue prejudice to the opposing party; (3) the request is made in bad 25 faith; (4) the party has repeatedly failed to cure deficiencies; or (5) the amendment would 26 be futile. See Leadsinger, Inc. v. BMG Music Publg, 512 F.3d 522, 532 (9th Cir. 2008). 27 /// 28 /// 1 IV. DISCUSSSION 2 Plaintiff argues the Court should grant her Motion to Amend because she filed it in 3 good faith as soon as she was able, before the deadline specified in the scheduling order, 4 and because she adds factual allegations and defendants in response to the deficiencies 5 that Defendants pointed out in their Motion to Dismiss her FAC. (ECF No. 53.) Defendants 6 respond that her proposed amendments are futile, arguing that the SAC does not cure 7 the deficiencies forming the basis of their Motion to Dismiss—that Plaintiff’s access to the 8 courts claim is noncognizable because she has not alleged the loss of a nonfrivolous 9 claim, and NDOC officials are entitled to qualified immunity in any event because Plaintiff 10 has no clearly-established right to correspond with other prisoners under these 11 circumstances. (ECF No. 55.) But “[a]mendment is futile only if no set of facts can be 12 proven under the amendment that would constitute a valid and sufficient claim.” Stebbins 13 v. Geico Ins. Agency, Case No. 2:18-cv-00590-APG-GWF, 2019 WL 281281, at *4 (D. 14 Nev. Jan. 22, 2019) (citation omitted). The Court thus agrees with Plaintiff that the Court 15 should grant her leave to amend here, especially given Rule 15’s edict that leave should 16 be freely given. The Court first addresses below Defendants’ argument that Plaintiff fails 17 to state a claim, and then their qualified immunity argument. 18 a. Access to the Courts Claim 19 The Court is not persuaded that Plaintiff’s proposed SAC fails to state an access 20 to the courts claim because she does not allege the loss of a nonfrivolous claim. (ECF 21 No. 55 at 3-4.) Defendants more specifically argue that—despite Plaintiff’s claim that her 22 state habeas cases were dismissed because her requests for I2I Correspondence were 23 denied for some time—she was successful in raising her underlying claim in her federal 24 habeas petition. (Id. at 3-4.) 25 To state an access to the courts claim, a plaintiff must allege that she: (1) was, or 26 is suffering “actual injury” by being “frustrated” or “impeded;” (2) in bringing a non-frivolous 27 claim; (3) about her criminal conviction or sentence, or the conditions of her confinement. 28 See Lewis v. Casey, 518 U.S. 343, 351-53 (1996). 1 The Court cannot find that it would be futile to permit Plaintiff to proceed on her 2 SAC, because the allegations in her proposed SAC are consistent with these 3 requirements. See id. While the Court cannot say at this stage whether Plaintiff’s state 4 habeas case was non-frivolous, the Court can certainly say that she has alleged it was. 5 (ECF No. 53-1 at 14-17.) And that is sufficient at this stage. Further, Plaintiff alleges the 6 denial of her request for I2I Correspondence at least impeded her state habeas claims, 7 which are claims about the validity of her criminal conviction. The Court is further 8 unpersuaded by Defendants’ argument that Plaintiff was successful in raising her 9 underlying claim in her federal habeas petition, because she may have lost the ability to 10 raise certain claims as a result of their dismissal during the state-court habeas process.4 11 In addition, accepting Plaintiff’s factual allegations regarding restrictions on access to the 12 law library as true, they buttress Plaintiff’s claim that restrictions on her access to the 13 courts resulted in the dismissal of her state habeas claims. Thus, the Court does find 14 Plaintiff’s proposed amendments in her SAC futile, because facts consistent with her 15 allegations could state a cognizable access to the courts claim. 16 b. Qualified Immunity 17 The Court disagrees with Defendants that the qualified immunity doctrine renders 18 Plaintiff’s proposed SAC futile. Defendants’ argument is that the administrative regulation 19 governing I2I Correspondence has never been declared unconstitutional, so even if 20 Defendants applied the policy incorrectly, they are entitled to qualified immunity. (ECF 21 Nos. 55 at 4-5, 32 at 5-9.) However, Plaintiff’s allegation is not merely that they applied 22 the policy incorrectly—it is that Defendants relied on the policy to deny her requests for 23 I2I Correspondence even though they knew she was entitled to it, or, said otherwise, that 24 they intentionally misapplied the policy to inhibit her correspondence with her co- 25 defendant in her underlying criminal case. (ECF No. 53-1 at 5-12.) Defendants’ argument 26 therefore does not really address Plaintiff’s allegations. Thus, the Court does not find 27 4While Defendants rely on Harris v. Velo-Lopez, Case No. 115CV01629MJSPC, 28 2016 WL 5943899, at *3 (E.D. Cal. Oct. 12, 2016), aff’d, 691 F. App’x 846 (9th Cir. 2017), 1 Defendants’ qualified immunity argument presents a sufficient reason to deny Plaintiff’s 2 Motion to Amend. 3 In sum, in light of Rule 15’s presumption favoring amendment, and having rejected 4 Defendants’ arguments against amendment, the Court will grant Plaintiff’s motion for 5 leave to file her proposed SAC. Because Defendants’ Motion to Dismiss attacked the 6 FAC, the Court will deny the Motion to Dismiss as moot. 7 V. CONCLUSION 8 The Court notes that the parties made several arguments and cited to several 9 cases not discussed above. The Court has reviewed these arguments and cases and 10 determines that they do not warrant discussion as they do not affect the outcome of the 11 motions before the Court. 12 It is therefore ordered that Plaintiff’s motion for leave to file her proposed SAC 13 (ECF No. 53) is granted. Plaintiff may proceed with her single access to the courts claim 14 alleged in her proposed SAC. 15 It is further ordered that Defendants’ motion to dismiss (ECF No. 32) is denied as 16 moot. 17 The Clerk of Court is directed to file the SAC (ECF Nos. 53-1, 53-2, 53-3). 18 DATED THIS 4th day of December 2019. 19
20 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28