1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SIMON THORNTON, No. 2: 21-cv-2155 KJN P 12 Plaintiff, 13 v. ORDER 14 YOUNG, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 Accordingly, the request to proceed in forma pauperis is granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 15 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 16 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 17 1227. 18 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 19 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 20 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 21 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 23 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 24 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 25 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 26 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 27 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 28 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 1 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 2 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 3 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 4 Named as defendants are Mrs. Young, California Department of Corrections and 5 Rehabilitation (“CDCR”) Director Gibson and Warden Covello. 6 Plaintiff alleges that on May 17, 2021, he was released from his cell to go to the law 7 library on A-yard. At that time, plaintiff had preferred legal user (“PLU”) status. Plaintiff alleges 8 that as he waited for a correctional deputy to unlock the door (presumably to the law library) at 9 1:00 p.m., defendant Young stated, “No law library access is available until the yard opens.” At 10 approximately 1:21 p.m., the yard opened. At approximately 1:30 p.m., defendant Young said 11 she was not doing anymore law library and the last unlock for the library was 1:00 p.m. 12 Therefore, plaintiff did not attend the law library on May 27, 2021. 13 Plaintiff alleges that on May 19, 2021, he was released with a PLU ducat. Defendant 14 Young later asked, “who is library?” When several people, including plaintiff, stepped forward, 15 defendant Young and Correctional Officer Radu said, “Yard is closed, no law library, return to 16 your housing.” Plaintiff asked Correctional Officer Radu why he could not access the law library 17 when he had a PLU ducat. Correctional Officer Radu responded, “because the yard isn’t open.” 18 Plaintiff filed a grievance regarding his failure to receive law library access. Plaintiff 19 alleges that he was retaliated for filing this grievance. 20 As legal claims, plaintiff alleges that defendant Young violated his right to access the 21 courts based on plaintiff’s alleged denial of law library access on May 17, 2021, and May 19, 22 2021. Plaintiff does not allege a legal claim based on alleged retaliation for filing a grievance. 23 The Constitution guarantees prisoners the fundamental right to meaningful access to the 24 Courts. Lewis v. Casey, 518 U.S. 343, 350-51 (1996).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SIMON THORNTON, No. 2: 21-cv-2155 KJN P 12 Plaintiff, 13 v. ORDER 14 YOUNG, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 Accordingly, the request to proceed in forma pauperis is granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 15 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 16 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 17 1227. 18 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 19 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 20 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 21 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 23 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 24 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 25 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 26 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 27 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 28 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 1 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 2 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 3 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 4 Named as defendants are Mrs. Young, California Department of Corrections and 5 Rehabilitation (“CDCR”) Director Gibson and Warden Covello. 6 Plaintiff alleges that on May 17, 2021, he was released from his cell to go to the law 7 library on A-yard. At that time, plaintiff had preferred legal user (“PLU”) status. Plaintiff alleges 8 that as he waited for a correctional deputy to unlock the door (presumably to the law library) at 9 1:00 p.m., defendant Young stated, “No law library access is available until the yard opens.” At 10 approximately 1:21 p.m., the yard opened. At approximately 1:30 p.m., defendant Young said 11 she was not doing anymore law library and the last unlock for the library was 1:00 p.m. 12 Therefore, plaintiff did not attend the law library on May 27, 2021. 13 Plaintiff alleges that on May 19, 2021, he was released with a PLU ducat. Defendant 14 Young later asked, “who is library?” When several people, including plaintiff, stepped forward, 15 defendant Young and Correctional Officer Radu said, “Yard is closed, no law library, return to 16 your housing.” Plaintiff asked Correctional Officer Radu why he could not access the law library 17 when he had a PLU ducat. Correctional Officer Radu responded, “because the yard isn’t open.” 18 Plaintiff filed a grievance regarding his failure to receive law library access. Plaintiff 19 alleges that he was retaliated for filing this grievance. 20 As legal claims, plaintiff alleges that defendant Young violated his right to access the 21 courts based on plaintiff’s alleged denial of law library access on May 17, 2021, and May 19, 22 2021. Plaintiff does not allege a legal claim based on alleged retaliation for filing a grievance. 23 The Constitution guarantees prisoners the fundamental right to meaningful access to the 24 Courts. Lewis v. Casey, 518 U.S. 343, 350-51 (1996). In order to prevail on a claim of 25 inadequate access to the law library, an inmate must establish: (1) “the access was so limited as to 26 be unreasonable”; and (2) “the inadequate access caused him actual injury, i.e., show a ‘specific 27 instance in which [he] was actually denied access to the courts.’” Vandelft v. Moses, 31 F.3d 28 794, 797 (9th Cir. 1994) (citation omitted). “The function of the injury requirement is to 1 determine whether the unreasonably limited access to the law library actually deprived the 2 prisoner of access to the courts. If no actual injury has resulted, then the rights of the prisoner 3 have not been infringed, and the inquiry need go no further.” Id. Actual injury is “actual 4 prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing 5 deadline or to present a claim.” Lewis, 518 U.S. at 348. 6 Plaintiff does not allege that he suffered any actual injury as a result of his inability to 7 access the law library on May 17, 2021, and May 19, 2021. For this reason, plaintiff has not 8 stated a potentially colorable claim for denial of access to the courts based on inadequate law 9 library access. Accordingly, this claim is dismissed. 10 The complaint contains no allegations against defendants Gibson and Covello. 11 The Civil Rights Act under which this action was filed provides as follows: 12 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 13 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 14 or other proper proceeding for redress. 15 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 16 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 17 Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983 18 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no 19 affirmative link between the incidents of police misconduct and the adoption of any plan or policy 20 demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another 21 to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative 22 act, participates in another’s affirmative acts or omits to perform an act which he is legally 23 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 24 F.2d 740, 743 (9th Cir. 1978). 25 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 26 their employees under a theory of respondeat superior and, therefore, when a named defendant 27 holds a supervisorial position, the causal link between him and the claimed constitutional 28 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) 1 (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 2 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. 3 denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of 4 official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 5 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal 6 participation is insufficient). 7 Defendants Gibson and Covello are dismissed because they are not linked to any alleged 8 deprivations. 9 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 10 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 11 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 12 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 13 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 14 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 15 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 16 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 17 268 (9th Cir. 1982). 18 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 19 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 20 complaint be complete in itself without reference to any prior pleading. This requirement exists 21 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 22 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 23 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 24 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 25 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 26 and the involvement of each defendant must be sufficiently alleged. 27 //// 28 //// 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Plaintiff's request for leave to proceed in forma pauperis 1s granted. 3 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 4 | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 5 || § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 6 || Director of the California Department of Corrections and Rehabilitation filed concurrently 7 || herewith. 8 3. Plaintiff's complaint is dismissed. 9 4. Within thirty days from the date of this order, plaintiff shall complete the attached 10 || Notice of Amendment and submit the following documents to the court: 11 a. The completed Notice of Amendment; and 12 b. An original of the Amended Complaint. 13 | Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the 14 | Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 15 || also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 16 Failure to file an amended complaint in accordance with this order may result in the 17 || dismissal of this action. 18 || Dated: December 8, 2021 " Aectl Aharon 20 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 21 22 53 Thorn2155.14 24 25 26 27 28
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 SIMON THORNTON, No. 2: 21-cv-2155 KJN P 11 Plaintiff, 12 v. NOTICE OF AMENDMENT 13 YOUNG, et al., 14 Defendant. 15
16 Plaintiff hereby submits the following document in compliance with the court's order 17 filed______________. 18 _____________ Amended Complaint 19 DATED:
20 ________________________________ 21 Plaintiff
22 23 24 25 26 27 28