(PC) Hearns v. Whisnand

• Court: District Court, E.D. California
• Decided: October 30, 2020
• Docket: 1:20-cv-00313
• Status: Unknown

Opinion

2 3

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 CLARENCE L. HEARNS, e t al., CASE NO. 1:20-cv-0313 JLT (PC) 12 Plaintiffs, ORDER REQUIRING PLAINTIFFS TO SUBMIT A RESPONSE 13 v. 14 ANDREW WHISNAND, et al., (Doc. 1)

15 Defendants. FOURTEEN-DAY DEADLINE 16 Clarence L. Hearns and Curtis Boyd governmental employees and/or entities violated their 17 constitutional rights.1 (Doc. 1.) Generally, the Court is required to screen complaints brought by 18 inmates seeking relief against a governmental entity or an officer or employee of a governmental 19 entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner 20 has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief 21 may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 22 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have 23 been paid, the court shall dismiss the case at any time if the court determines that . . . the action or 24 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 25 I. Pleading Standard 26 A complaint must contain “a short and plain statement of the claim showing that the pleader 27

28 1 The complaint is signed only by Clarence L. Hearns. 1 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 2 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 3 do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 4 550 U.S. 544, 555 (2007)), and courts “are not required to indulge unwarranted inferences,” Doe I 5 v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 6 omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. 7 at 678. 8 Prisoners may bring § 1983 claims against individuals acting “under color of state law.” 9 See 42 U.S.C. § 1983, 28 U.S.C. § 1915(e) (2)(B)(ii). Under § 1983, plaintiff must demonstrate that 10 each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 11 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a 12 plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 13 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 14 liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 15 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of misconduct falls short 16 of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 17 II. Plaintiffs’ Allegations 18 Plaintiffs Clarence L. Hearns and Curtis Boyd were state prisoners housed at California 19 Substance Abuse Treatment Facility (“CSATF”) in Corcoran, California. They name the following 20 individuals as defendants: Andrew Whisnand, a Deputy Attorney General; J. Barba, the CSATF 21 Litigation Coordinator; S. Fleming, Correctional Counselor I; and John Doe, a CSATF inmate-to- 22 inmate mail coordinator. Plaintiffs seek damages and injunctive relief. 23 Plaintiffs’ allegations may be fairly summarized as follows: 24 In an unrelated case filed in this court, Boyd v. Etchebehere, Case No. 13-cv-1966-LJO- 25 SAB (E.D. Cal.), Hearns assisted Boyd as a “paralegal,” helping draft motions and related 26 documents. Andrew Whisnand, defense counsel in that case, is accused of having included a false 27 statement in a declaration. 28 1 Hearns alleges that Whisnand conspired with the CSATF Litigation Coordinator and with 2 Correctional Counselor Fleming to interfere with the Plaintiffs’ ability to communicate with one 3 another via inmate-to-inmate mail. Hearns contends that he mailed a number of legal documents to 4 Boyd for review and/or filing in the aforementioned case, and in turn Boyd mailed him several 5 documents. Barba allegedly “agreed to help stop or delay delivery of any legal mail or process 6 utilized by Plaintiffs including inmate-to-inmate correspondence [CDC 1074] approval system.” As 7 a result of Barba’s alleged interference with the inmate-to-inmate mail, Plaintiffs “suffered lost work 8 product and lost opportunity to present facts and legal authorities before Courts.” 9 On or around August 3, 2018, John Doe processed Hearns’s incoming mail, which included 10 a court order in a state court case, Case No. 24-2017-80002586-CU-WM-GDS. The court’s order 11 directed Hearns’s appearance on a court call scheduled for September 14, 2018. When Barba 12 received the order, he provided a copy to Hearns, but he did not enter the call into the institution’s 13 tracking system. 14 On September 14, Hearns appeared at defendant Fleming’s office to join the 11:00 a.m. 15 court call. Fleming, however, stated that he was unaware of the court call and said he would contact 16 Barba “to see what’s going on.” Hearns waited in his cell but then returned to Fleming’s office at 17 10:50 a.m. Fleming had not yet received word from Barba about the court call. As a result, Fleming 18 refused to let Hearns join the call, and Hearns’s writ of mandate was dismissed for failure to respond 19 appropriately to a court-ordered appearance. 20 After the failed court call, Hearns submitted an Inmate Parole Request Form 22, a letter of 21 dissatisfaction to Warden Stu Sherman, and an inmate grievance. Hearns suggests nefarious intent 22 and plotting on the part of Barba and Fleming (allegedly in coordination with defendant Andrew 23 Whisnand) to prevent him from making the call, but he also alleges that Fleming was unaware of 24 the court call and that Barba stated that he did not know what the procedures were for making a 25 court call. 26 /// 27 /// 28 1 III. Discussion 2 A. Claims on Behalf of Other Inmates 3 As an initial matter, Mr. Hearns is informed that he cannot bring an action on behalf of a 4 fellow inmate because he is proceeding pro se in this action. Pro se litigants have no authority to 5 represent anyone other than themselves; therefore, they lack the representative capacity to file 6 motions and other documents on behalf of prisoners. See Johns v. County of San Diego, 114 F.3d 7 874, 877 (9th Cir. 1997) (“[A] non-lawyer ‘has no authority to appear as an attorney for others than 8 himself,’”) (quoting C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987)); 9 see also Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (non-attorney plaintiff may 10 not attempt to pursue claim on behalf of others in a representative capacity). “Although a non- 11 attorney may appear in propria person in his behalf, that privilege is personal to him.” Id. (citations 12 omitted). 13 B. Joinder 14 “Rule 20(a) of the Federal Rules of Civil Procedure permits the joinder of plaintiffs in one 15 action if: (1) the plaintiffs assert any right to relief arising out of the same transaction, occurrence, 16 or series of transactions or occurrences; and (2) there are common questions of law or fact. If the 17 test for permissive joinder is not satisfied, a court, in its discretion, may sever the misjoined parties, 18 so long as no substantial right will be prejudiced by the severance.” Coughlin v. Rogers, 130 F.3d 19 1348, 1350 (9th Cir. 1997) (internal citations omitted); see Fed. R. Civ. P. 21 (“Misjoinder of parties 20 is not a ground for dismissing an action. On motion or on its own, the court may at any time, on 21 just terms, add or drop a party. The court may also sever any claim against a party.”). 22 Actions brought by multiple prisoners in pro se present unique problems not presented by 23 ordinary civil litigation. For example, transfer of one or more plaintiffs to different institutions or 24 release on parole, as well as the challenges to communication among plaintiffs presented by 25 confinement, may cause delay and confusion. Moreover, even if plaintiffs obtained authorization 26 to communicate with each other, delays would be caused by the need for all filings to contain the 27 original signatures of both plaintiffs, since plaintiffs are not permitted to sign documents on the 28 1 other’s behalf. Local Rule 131(b) (“All pleadings and non-evidentiary documents shall be signed 2 … by the party involved if that party is appearing in propria persona.”); Johns v. County of San 3 Diego, 114 F.3d 874, 877 (9th Cir. 1997) (“[A] non-lawyer ‘has no authority to appear as an 4 attorney for others than himself.’ ” (quoting C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 5 697 (9th Cir. 1987))). 6 In addition, the interplay of the filing fee provisions in the Prison Litigation Reform Act of 7 1995 (“PLRA”) suggests that prisoners may not bring multi-plaintiff actions, but rather must each 8 proceed separately. To proceed with a civil action, each plaintiff must pay the $400 filing fee 9 required by 28 U.S.C. § 1914(a) or request leave to proceed in forma pauperis and submit the 10 affidavit and trust account statement required by 28 U.S.C. § 1915(a). The PLRA expressly requires 11 that a prisoner, where proceeding in forma pauperis, pay the full amount of the filing fee. 28 U.S.C. 12 § 1915(b)(1). This provision reflected Congress’s intent to reduce the volume of frivolous prisoner 13 litigation in the federal courts. Hubbard v. Haley, 262 F.3d 1194, 1196-97 (11th Cir. 2001); see 14 also Oliver v. Keller, 289 F.3d 623, 627-28 (9th Cir. 2002). Thus, in order not to undermine the 15 PLRA’s deterrent purpose, courts have agreed that prisoner-plaintiffs who proceed together in one 16 action must each pay the full filing fee. Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir. 2004); 17 Hubbard, 262 F.3d at 1197-98. However, 28 U.S.C. § 1915(b)(3) provides that “in no event shall 18 the filing fee collected exceed the amount of fees permitted by statute for the commencement of a 19 civil action.” If multiple prisoners were permitted to proceed with a joint action, and each paid the 20 full filing fee in accordance with § 1915(b)(1) and the apparent intent of Congress, the amount of 21 fees collected would exceed the amount permitted by statute for commencement of the action, in 22 violation of § 1915(b)(3). Therefore, to avoid the problems related to case-management and filing 23 fees, permissive joinder of Clarence Hearns and Curtis Boyd, as co-plaintiffs in this action is 24 denied. They may each, however, proceed with their own actions. See DirecTV, Inc. v. Leto, 467 25 F.3d 842, 846 (3d Cir. 2006) (claims that are severed rather than dismissed may continue in a 26 separate suit to avoid statute of limitations barrier that might arise in event of dismissal). 27 Severance, however, is complicated by the fact that Boyd has not appeared in this action; 28 1 he has neither signed the complaint nor submitted an application to proceed in forma pauperis. 2 Because it is unclear if Boyd has indeed joined Hearns in this case, Boyd will be directed to indicate 3 his intent within fourteen days. At that time, he must file the complaint, with his original signature 4 on it and pay a filing fee or submit a request to proceed in forma pauperis. If he does this, his case 5 will be severed from this one, and Clarence Hearns will proceed as the sole plaintiff in this case. If 6 Plaintiff Boyd does not appear or indicates that he does not intend to join this action, the Court will 7 issue findings and recommendations to dismiss him from this action entirely. Either way, the 8 remainder of this screening order will address only those claims that are specific to Hearns. 9 C. Judicial Immunity 10 Hearns names Andrew Whisnand, a Deputy Attorney General, for his role as defense 11 counsel in Boyd v. Etchebehere, Case No. 13-cv-1966-LJO-SAB (E.D. Cal.). When sued in official 12 and individual capacities, the Ninth Circuit has held that an attorney general or deputy attorney 13 general has absolute immunity, except they “are not immune from any actions that are wholly 14 unrelated to or outside of their official duties.” Bly-Magee v. California, 236 F.3d 1014, 1018 (9th 15 Cir. 2001); see also Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir. 1991) (government lawyers 16 absolutely immune for actions “intimately” or “closely” associated with judicial process). “Whether 17 the government attorney is representing the plaintiff or the defendant, or is conducting a civil trial, 18 criminal prosecution or agency hearing, absolute immunity is necessary to assure that ... advocates 19 ... can perform their respective functions without harassment or intimidation.” Id. (citation omitted). 20 Because the conduct complained of was related to official duties that this defendant performed, any 21 claim against him is barred. 22 Hearns also lacks standing to bring this claim because he was not a litigant in Boyd v. 23 Etchebehere, Case No. 13-cv-1966-LJO-SAB (E.D. Cal.), and therefore was not harmed by any 24 alleged impropriety. Prescott v. County of El Dorado, 298 F.3d 844, 846 (9th Cir. 2002) (““In order 25 to have standing, a plaintiff must establish an injury in fact, causation, and redressability.”). 26 D. Linkage 27 Under § 1983, the plaintiff must demonstrate that each named defendant personally 28 1 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, 2 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 3 2009). Liability may not be imposed on supervisory personnel under the theory of respondeat 4 superior. Iqbal, 556 U.S. at 676-77. Supervisory personnel may only be held liable if they 5 “participated in or directed the violations, or knew of the violations and failed to act to prevent 6 them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 7 1205-08 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012). 8 Hearns names John Doe as a defendant for his alleged role in the processing of his incoming 9 mail on August 3, 2018. Beyond that fact, there are no additional details to suggest that this 10 defendant violated Hearns’s constitutional right. Accordingly, Hearns fails to state a claim against 11 John Doe. 12 E. First Amendment Access to Court 13 Prisoners have a constitutional right of access to the courts, protected by the First 14 Amendment right to petition and the Fourteenth Amendment right to substantive due process. 15 Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011). This right is limited to direct criminal 16 appeals, habeas petitions, and Section 1983 civil rights actions. Lewis v. Casey, 518 U.S. 343, 17 354 (1996). The right, however, “guarantees no particular methodology but rather the conferral of 18 a capability—the capability of bringing contemplated challenges to sentences or conditions of 19 confinement before the courts.... [I]t is this capability, rather than the capability of turning pages 20 in a law library, that is the touchstone” of the right of access to the courts. Id. at 356-57. 21 The Supreme Court has identified two categories of access-to-court claims. Christopher v. 22 Harbury, 536 U.S. 403, 412-13 (2002). The first category consists of “forward-looking” claims, 23 which allege that official action presently is frustrating the plaintiff’s ability to prepare and file a 24 suit at the present time. Id. at 413. The object of “forward-looking” claims is to “place the 25 plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been 26 removed.” Id. The second category consists of “backward-looking” claims, which allege that due 27 to official action, a specific case “cannot now be tried (or tried with all material evidence), no 28 1 matter what official action may be in the future.” Id. at 413-14. These cases look “backward to a 2 time when specific litigation ended poorly, or could not have commenced, or could have 3 produced a remedy subsequently unobtainable.” Id. at 414. As plaintiff claims that defendants’ 4 actions caused him to miss a deadline with the California courts, this case is “backward-looking.” 5 To state a claim for denial of access to the courts, a plaintiff must establish that he or she 6 suffered an “actual injury”—that is, “actual prejudice with respect to contemplated or existing 7 litigation, such as the inability to meet a filing deadline or to present a claim.” Nev. Dep't of Corr. 8 v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis, 518 U.S. at 348-49). “Actual injury 9 is a jurisdictional requirement that flows from the standing doctrine and cannot be waived.” 10 Lewis, 518 U.S. at 348. Specifically, in a “backward-looking” access-to-courts claim, a plaintiff 11 must identify: (1) a “nonfrivolous,” “arguable” underlying claim, pled “in accordance with 12 Federal Rule of Civil Procedure 8(a), just as if it were being independently pursued”; (2) the 13 official acts that frustrated the litigation of that underlying claim; and (3) a “remedy available 14 under the access claim and presently unique to it” that is “not otherwise available in some suit 15 that may yet be brought.” Harbury, 536 U.S. at 415, 417-18. However, even if delays in providing 16 legal materials or assistance result in actual injury, they are “not of constitutional significance” if 17 “they are the product of prison regulations reasonably related to legitimate penological interests.” 18 Lewis, 518 U.S. at 362. 19 Insofar as Hearns asserts an access to court claim based on conduct by CSATF Litigation 20 Coordinator Barba related to the processing and/or mailing of inmate-to-inmate correspondence 21 with Boyd, he fails to allege actual injury insofar as it relates to delayed filings and missed deadlines 22 in Boyd v. Etchebehere, Case No. 13-cv-1966-LJO-SAB (E.D. Cal.). In fact, Hearns would be 23 unable to allege any injury because the underlying case was initiated by and on behalf of Plaintiff 24 Boyd, meaning that any claimed injury would be his to assert, not Hearns. Since this defect cannot 25 be cured, any claim based on these facts should be dismissed without leave to amend. 26 Hearns also fails to state an access to court claim based on the missed court call in the state 27 court case, which was presumably filed on behalf of himself. Though Hearns claims the state case 28 1 was dismissed for his failure to attend a court call, he has provided no information concerning that 2 case, including what his “nonfrivolous” underlying claim was and why his inability to attend a court 3 call that he, as a state inmate, clearly could not have initiated on his own would have resulted in 4 dismissal. 5 F. Conspiracy 6 Lastly, Hearns contends that the defendants conspired to prevent him from receiving or 7 sending mail. To state a claim for conspiracy under section 1983, plaintiff must show the existence 8 of an agreement or a meeting of the minds to violate his constitutional rights, and an actual 9 deprivation of those constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010); 10 Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001). “Conspiracy” is not a stand-alone claim. A 11 conspiracy “does not enlarge the nature of the claims asserted by the plaintiff, as there must always 12 be an underlying constitutional violation. Lacey v. Maricopa Cnty., 693 F.3d 896, 935 (9th Cir. 13 2012) (citations omitted). 14 Hearns fails to state a cognizable claim for conspiracy. He fails to demonstrate that any 15 individual defendant conspired, how such defendant conspired, and how the conspiracy led to a 16 deprivation of his constitutional rights. See Harris v. Roderick, 126 F.3d 1189, 1196 (9th Cir. 1997). 17 Accordingly, Hearns fails to state a claim for conspiracy. 18 IV. Conclusion 19 Hearns fails to state a claim on which relief may be granted. The Court will grant him an 20 opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 21 If he does not wish to amend, he may instead file a notice of voluntary dismissal, and the action 22 then will be terminated by operation of law. Fed. R. Civ. P. 41(a)(1)(A)(i). Alternatively, plaintiff 23 may forego amendment and notify the Court that he wishes to stand on his complaint. See Edwards 24 v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may elect to forego 25 amendment). If the last option is chosen, the undersigned will issue findings and recommendations 26 to dismiss the complaint without leave to amend, plaintiff will have an opportunity to object, and 27 the matter will be decided by a District Judge. 28 1 If Hearns opts to amend, he must demonstrate that the alleged acts resulted in a deprivation 2 of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual 3 matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 4 555 (2007)). Plaintiff should note that although he has been granted the opportunity to amend his 5 complaint, it is not for the purposes of adding new and unrelated claims. George v. Smith, 507 F.3d 6 605, 607 (7th Cir. 2007). Plaintiff should carefully review this screening order and focus his efforts 7 on curing the deficiencies set forth above. 8 Finally, Hearns is advised that Local Rule 220 requires that an amended complaint be 9 complete in itself without reference to any prior pleading. As a general rule, an amended complaint 10 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an 11 amended complaint is filed, the original complaint no longer serves a function in the case. Id. 12 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement 13 of each defendant must be sufficiently alleged. The amended complaint should be clearly titled, in 14 bold font, “First Amended Complaint,” reference the appropriate case number, and be an original 15 signed under penalty of perjury. Plaintiff’s amended complaint should be brief. Fed. R. Civ. P. 8(a). 16 Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief 17 above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). Accordingly, the 18 Court ORDERS: 19 1. Within fourteen days from the date of this order, Boyd is directed to submit notice 20 of his intent to proceed in this action. If he wishes to proceed, he SHALL submit a 21 copy of his lawsuit reflecting his original signature, and pay the filing fee or submit 22 a request to proceed in forma pauperis; 23 2. If Boyd fails to respond to this order, the Court will presume that he does not wish 24 to proceed with this case and will recommend that he be dismissed from this action; 25 3. The Clerk of Court is directed to serve a copy of the complaint and this screening 26 order on Plaintiff Boyd at the following address:

27 Curtis Boyd 28 CDCR # G-63585 1 Valley State Prison P.O. Box 96 2 Chowchilla, CA 93610 3 4 4. Within thirty days from the date of this order, Hearns must file either a first 5 amended complaint curing the deficiencies identified by the Court in this order, a 6 notice of voluntary dismissal, or a notice of election to stand on the complaint; and 7 5. If Hearns fails to file a first amended complaint or notice of voluntary dismissal, the 8 Court will recommend the action be dismissed, with prejudice, for failure to obey a 9 court order and failure to state a claim. 10 11 IT IS SO ORDERED.

12 Dated: October 29, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 13

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