1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LARVESTER J. JOHNSON, Case No. 22-cv-09197-WHO (PR)
Plaintiff, 8 ORDER GRANTING DEFENDANT’S MOTION TO v. 9 DISMISS;
10 EBENEZER ESPINOZA, ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND Defendant. 11 Dkt. Nos. 17 and 19
13 INTRODUCTION 14 Plaintiff Larvester J. Johnson alleges in this 42 U.S.C. § 1983 action that one of his 15 jailors, defendant Ebenezer Espinoza, confiscated his legal materials and retaliated against 16 him in violation of the First Amendment. Espinoza moves to dismiss the complaint under 17 Rule 12(b)(6) on grounds that Johnson has not stated a claim for relief. 18 The motion to dismiss will be granted. Espinoza correctly points out that Johnson 19 has not alleged facts that he suffered an actual injury, and therefore has not stated a denial 20 of access to the court claim. Nor has Johnson stated a claim for retaliation because his 21 allegations do not contain supporting and specific facts. Accordingly, defendant’s motion 22 to dismiss is GRANTED and the complaint is DISMISSED with leave to file an amended 23 complaint on this Court’s form on or before May 20, 2024. Failure to file a proper 24 complaint by May 20, 2024, likely will result in the dismissal of this action under Federal 25 Rule of Civil Procedure 41(b) for failure to prosecute. 26 Johnson’s motion for leave to file an amended complaint is GRANTED. (Dkt. No. 27 19.) His motion for an order directing defense counsel and the San Francisco County Jail 1 to obey a state court order is DENIED. (Id.) 2 BACKGROUND 3 The following factual allegations are taken from the complaint and will be assumed 4 as true for purposes of this order. Johnson alleges that while he was in the custody of the 5 San Francisco County Sheriff, defendant Espinoza, a sergeant, took his legal papers and 6 searched them on several occasions. 7 In August 2022, as Johnson was going to court, Espinoza took his “legal papers,” 8 searched them, “started to pick any paper that don’t look like legal paper,” and put a letter 9 to the judge in the trash. (Compl., Dkt. No. 1 at 2.) On September 20, 2022, Johnson and 10 Espinoza yelled at each other until he told plaintiff to turn around and face the wall. (Id.) 11 When Johnson tried to speak to him, Espinoza told him to go back to his cell because was 12 “not going to court today.” (Id.) On an unspecified day, Espinoza asked Johnson whether 13 he could see his legal papers. (Id. at 3.) Johnson said everything he had was “legal 14 documentation to the court.” (Id.) Espinoza then took the materials and left them in the 15 “holding offices.” (Id.) When Johnson said those were legal papers he needed to take to 16 court, Espinoza said, “Do you want to do go to court?” (Id.) When he said yes, Espinoza 17 said “shut up.” (Id.) In October 2022, when Johnson was to go to court for a preliminary 18 hearing, Espinoza confiscated his legal papers, which Johnson needed to help his defense 19 attorney, and then sent Johnson to his cell, causing him to miss his hearing. (Id.) On 20 October 18, Espinoza took his legal papers and “gave them to the judge.” (Id. at 4.) On 21 November 17, Espinoza took his legal documents, tore open his legal mail, and put the 22 papers in the trash. (Id.) 23 Johnson alleges that by his actions Espinoza denied his access to the courts and 24 retaliated against him in violation of the First Amendment. (Compl., Dkt. No. 1 at 4-5.) 25 STANDARD OF REVIEW 26 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be 27 granted if the complaint does not proffer “enough facts to state a claim for relief that is 1 Dismissal is appropriate also when pleadings show a “lack of cognizable legal theory,” or 2 “the absence of sufficient facts alleged under a cognizable legal theory,” Balistreri v. 3 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (citation omitted), or when an 4 affirmative defense is premised on facts alleged in the complaint, Scott v. Kuhlmann, 746 5 F.2d 1377, 1378 (9th Cir. 1994). 6 DISCUSSION 7 i. First Amendment Access-to-Court Claim 8 To state a First Amendment access-to-court claim, a litigant must allege facts 9 showing that the defendant’s interference caused him an actual injury by hindering his 10 efforts to pursue a legal claim. Lewis v. Casey, 518 U.S. 343, 351 (1996); Sands v. Lewis, 11 886 F.2d 1166, 1171 (9th Cir. 1989) (“Only if an actual injury is alleged does a plaintiff 12 state a claim for which relief can be granted.”). “If no actual injury has resulted, then the 13 rights of the prisoner have not been infringed, and the inquiry need go no further.” 14 Vandelft v. Moses, 31 F.3d 794, 797 (9th Cir. 1994). An “actual injury consists of some 15 specific instance in which an inmate was actually denied access to the courts,” Sands, 886 16 F.2d at 1171 (citations omitted), such as the inability to meet a filing deadline or present a 17 claim, resulting in the loss of the claim, Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 18 1018 (9th Cir. 2011) (citing Lewis, 518 U.S. at 348). 19 Johnson has not alleged specific facts showing that he suffered an actual injury. 20 Though he alleges that Espinoza took, searched, and seized his legal papers, he has not 21 alleged any facts showing that Espinoza’s actions resulted in Johnson’s inability to meet a 22 deadline or present a claim, therefore losing the claim. This claim is DISMISSED with 23 leave to amend. Johnson is reminded that he must have exhausted his administrative 24 grievances regarding this claim for it to proceed. 25 ii. Retaliation 26 “Within the prison context, a viable claim of First Amendment retaliation entails 27 five basic elements: (1) An assertion that a state actor took some adverse action against an 1 the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably 2 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-568 (9th 3 Cir. 2005). “We have repeatedly held that mere speculation that defendants acted out of 4 retaliation is not sufficient.” Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (citations 5 omitted). 6 As Espinoza points out, the claim of retaliation lacks detail. Johnson says in his 7 statement of his claim, but not in his factual summary, that Espinoza threatened him with 8 violence for exercising his right to seek redress through the prison grievance system. 9 (Compl., Dkt. No. 1 at 5.) There are no facts regarding when this incident occurred, what 10 words were used, and when Johnson tried to file a grievance. If this claim is to survive, 11 Johnson must provide such crucial details. Also, he must allege specific facts showing that 12 Espinoza took an adverse action against him because of Johnson’s protected conduct. He 13 must also allege specific facts that Espinoza’s action chilled the exercise of his First 14 Amendment rights and that Espinoza’s action did not reasonably advance a legitimate 15 correctional goal. 16 The retaliation claim is DISMISSED with leave to amend. Johnson is reminded 17 that he must have exhausted his administrative grievances regarding this claim for it to 18 proceed.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LARVESTER J. JOHNSON, Case No. 22-cv-09197-WHO (PR)
Plaintiff, 8 ORDER GRANTING DEFENDANT’S MOTION TO v. 9 DISMISS;
10 EBENEZER ESPINOZA, ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND Defendant. 11 Dkt. Nos. 17 and 19
13 INTRODUCTION 14 Plaintiff Larvester J. Johnson alleges in this 42 U.S.C. § 1983 action that one of his 15 jailors, defendant Ebenezer Espinoza, confiscated his legal materials and retaliated against 16 him in violation of the First Amendment. Espinoza moves to dismiss the complaint under 17 Rule 12(b)(6) on grounds that Johnson has not stated a claim for relief. 18 The motion to dismiss will be granted. Espinoza correctly points out that Johnson 19 has not alleged facts that he suffered an actual injury, and therefore has not stated a denial 20 of access to the court claim. Nor has Johnson stated a claim for retaliation because his 21 allegations do not contain supporting and specific facts. Accordingly, defendant’s motion 22 to dismiss is GRANTED and the complaint is DISMISSED with leave to file an amended 23 complaint on this Court’s form on or before May 20, 2024. Failure to file a proper 24 complaint by May 20, 2024, likely will result in the dismissal of this action under Federal 25 Rule of Civil Procedure 41(b) for failure to prosecute. 26 Johnson’s motion for leave to file an amended complaint is GRANTED. (Dkt. No. 27 19.) His motion for an order directing defense counsel and the San Francisco County Jail 1 to obey a state court order is DENIED. (Id.) 2 BACKGROUND 3 The following factual allegations are taken from the complaint and will be assumed 4 as true for purposes of this order. Johnson alleges that while he was in the custody of the 5 San Francisco County Sheriff, defendant Espinoza, a sergeant, took his legal papers and 6 searched them on several occasions. 7 In August 2022, as Johnson was going to court, Espinoza took his “legal papers,” 8 searched them, “started to pick any paper that don’t look like legal paper,” and put a letter 9 to the judge in the trash. (Compl., Dkt. No. 1 at 2.) On September 20, 2022, Johnson and 10 Espinoza yelled at each other until he told plaintiff to turn around and face the wall. (Id.) 11 When Johnson tried to speak to him, Espinoza told him to go back to his cell because was 12 “not going to court today.” (Id.) On an unspecified day, Espinoza asked Johnson whether 13 he could see his legal papers. (Id. at 3.) Johnson said everything he had was “legal 14 documentation to the court.” (Id.) Espinoza then took the materials and left them in the 15 “holding offices.” (Id.) When Johnson said those were legal papers he needed to take to 16 court, Espinoza said, “Do you want to do go to court?” (Id.) When he said yes, Espinoza 17 said “shut up.” (Id.) In October 2022, when Johnson was to go to court for a preliminary 18 hearing, Espinoza confiscated his legal papers, which Johnson needed to help his defense 19 attorney, and then sent Johnson to his cell, causing him to miss his hearing. (Id.) On 20 October 18, Espinoza took his legal papers and “gave them to the judge.” (Id. at 4.) On 21 November 17, Espinoza took his legal documents, tore open his legal mail, and put the 22 papers in the trash. (Id.) 23 Johnson alleges that by his actions Espinoza denied his access to the courts and 24 retaliated against him in violation of the First Amendment. (Compl., Dkt. No. 1 at 4-5.) 25 STANDARD OF REVIEW 26 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be 27 granted if the complaint does not proffer “enough facts to state a claim for relief that is 1 Dismissal is appropriate also when pleadings show a “lack of cognizable legal theory,” or 2 “the absence of sufficient facts alleged under a cognizable legal theory,” Balistreri v. 3 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (citation omitted), or when an 4 affirmative defense is premised on facts alleged in the complaint, Scott v. Kuhlmann, 746 5 F.2d 1377, 1378 (9th Cir. 1994). 6 DISCUSSION 7 i. First Amendment Access-to-Court Claim 8 To state a First Amendment access-to-court claim, a litigant must allege facts 9 showing that the defendant’s interference caused him an actual injury by hindering his 10 efforts to pursue a legal claim. Lewis v. Casey, 518 U.S. 343, 351 (1996); Sands v. Lewis, 11 886 F.2d 1166, 1171 (9th Cir. 1989) (“Only if an actual injury is alleged does a plaintiff 12 state a claim for which relief can be granted.”). “If no actual injury has resulted, then the 13 rights of the prisoner have not been infringed, and the inquiry need go no further.” 14 Vandelft v. Moses, 31 F.3d 794, 797 (9th Cir. 1994). An “actual injury consists of some 15 specific instance in which an inmate was actually denied access to the courts,” Sands, 886 16 F.2d at 1171 (citations omitted), such as the inability to meet a filing deadline or present a 17 claim, resulting in the loss of the claim, Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 18 1018 (9th Cir. 2011) (citing Lewis, 518 U.S. at 348). 19 Johnson has not alleged specific facts showing that he suffered an actual injury. 20 Though he alleges that Espinoza took, searched, and seized his legal papers, he has not 21 alleged any facts showing that Espinoza’s actions resulted in Johnson’s inability to meet a 22 deadline or present a claim, therefore losing the claim. This claim is DISMISSED with 23 leave to amend. Johnson is reminded that he must have exhausted his administrative 24 grievances regarding this claim for it to proceed. 25 ii. Retaliation 26 “Within the prison context, a viable claim of First Amendment retaliation entails 27 five basic elements: (1) An assertion that a state actor took some adverse action against an 1 the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably 2 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-568 (9th 3 Cir. 2005). “We have repeatedly held that mere speculation that defendants acted out of 4 retaliation is not sufficient.” Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (citations 5 omitted). 6 As Espinoza points out, the claim of retaliation lacks detail. Johnson says in his 7 statement of his claim, but not in his factual summary, that Espinoza threatened him with 8 violence for exercising his right to seek redress through the prison grievance system. 9 (Compl., Dkt. No. 1 at 5.) There are no facts regarding when this incident occurred, what 10 words were used, and when Johnson tried to file a grievance. If this claim is to survive, 11 Johnson must provide such crucial details. Also, he must allege specific facts showing that 12 Espinoza took an adverse action against him because of Johnson’s protected conduct. He 13 must also allege specific facts that Espinoza’s action chilled the exercise of his First 14 Amendment rights and that Espinoza’s action did not reasonably advance a legitimate 15 correctional goal. 16 The retaliation claim is DISMISSED with leave to amend. Johnson is reminded 17 that he must have exhausted his administrative grievances regarding this claim for it to 18 proceed. 19 MOTION 20 Johnson’s motion to file an amended complaint is GRANTED. (Dkt. No. 19.) His 21 motion for an order directing his defense attorney and the San Francisco County Jail to 22 obey a state court order is DENIED. (Id.) Johnson should make a request in state court for 23 the enforcement of any state court order. 24 CONCLUSION 25 Espinoza’s’s motion to dismiss is GRANTED. (Dkt. No. 17.) The complaint is 26 DISMISSED with leave to file an amended complaint on this Court’s form on or before 27 May 20, 2024. The amended complaint must include the caption and civil case number 1 || COMPLAINT must be written on the first page. The amended complaint must also appear 2 || on this Court’s form, a copy of which will be sent to him. Because an amended complaint 3 || completely replaces the previous complaints, plaintiff must include in his first amended 4 || complaint all the claims he wishes to present and all of the defendants he wishes to sue. 5 See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate 6 || material from the prior complaint by reference. Failure to file a proper amended complaint 7 || by May 20, 2024 may result in dismissal of this action under Federal Rule of Civil 8 || Procedure 41(b) for failure to prosecute. 9 Johnson’s motion to file an amended complaint is GRANTED. (Dkt. No. 19.) His 10 || motion for an order directing his defense attorney and the San Francisco County Jail to 11 obey a state court order is DENIED. (/d.) 2 The Clerk shall terminate all pending motions. | Isso ORDERED. 14 || Dated: April 8, 2024 ioM.Qe AM H. ORRI 16 United States District Judge
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