Moore v. Flores

• Court: District Court, N.D. California
• Decided: June 21, 2023
• Docket: 5:23-cv-02065
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 RYAN T. MOORE, AL1638, Case No. 23-cv-02065-SK (PR)

10 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 11 v. TO AMEND

12 FLORES, Correctional Officer, et al.,

13 Defendant(s).

14 Plaintiff, a prisoner at San Quentin State Prison (SQSP), has filed a pro se complaint for 15 damages under 42 U.S.C. § 1983 alleging that, during a video visit with his attorney on July 22, 16 2022, Correctional Officer Flores listened to and monitored the legal conversation. Plaintiff 17 further alleges that Sergeant Bermudez ignored plaintiff’s complaint regarding Flores’ actions and 18 that Lieutenant Demus and Warden Oak Smith and former warden Broomfiled “have mindfully 19 assisted in the cover-up of said misconduct by CO Flores.” Compl. (ECF No. 1) at 3. 20 DISCUSSION 21 A. Standard of Review 22 Federal courts must engage in a preliminary screening of cases in which prisoners seek 23 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 24 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of 25 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 26 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 27 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 1 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 2 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 3 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 4 42, 48 (1988). 5 B. Legal Claims 6 A prisoner’s constitutional right of meaningful access to the courts includes an opportunity 7 to communicate privately with his counsel. See Ching v. Lewis, 895 F.2d 608, 609-10 (9th Cir. 8 1990) (adopting holding and reasoning in Dreher v. Sielaff, 636 F.2d 1141, 1143 (7th Cir. 1980)). 9 But this right may be limited if prison officials can show that limitations are “reasonably related to 10 legitimate penological interests.” Casey v. Lewis, 4 F.3d 1516, 1520 (9th Cir. 1993). 11 Liberally construed, plaintiff’s allegations that Flores listened to and monitored plaintiff’s 12 legal conversation with his attorney arguably states a cognizable claim under § 1983 against Flores 13 for a possible violation of plaintiff’s right of meaningful access to the courts. But to state a 14 cognizable claim under § 1983 against the other named defendants – Bermudez, Demus, Smith 15 and Broomfield – for a similar possible violation under § 1983, plaintiff must allege specific facts 16 showing how each of the other named defendants actually and proximately caused the possible 17 violation of the constitutional right of which he complains. See Leer v. Murphy, 844 F.2d 628, 18 633-34 (9th Cir. 1988). Plaintiff’s conclusory allegations of a cover-up will not do. See id. at 19 634. Even at the pleading stage, “[a] plaintiff must allege facts, not simply conclusions, that show 20 that an individual was personally involved in the deprivation of his civil rights.” Barren v. 21 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 22 CONCLUSION 23 For the foregoing reasons, the complaint is dismissed with leave to amend, as indicated 24 above, within 28 days of this order. The pleading must be simple and concise and must include 25 the caption and civil case number used in this order and the words FIRST AMENDED 26 COMPLAINT on the first page. Failure to file a proper amended complaint within the designated 27 time will result in the dismissal of this action. 1 all other pleadings. Claims and defendants not included in the amended complaint will not be 2 considered by the court. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 3 IT IS SO ORDERED. 4 Dated: June 21, 2023 4 ( a, . 5 SALLIE KIM 6 United States Magistrate Judge 7 8 9 10 11 a 12

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