(PC) Urmancheev v. Anglea

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALIM S. URMANCHEEV, Case No.:1:19-cv-00791-DAD-JLT (PC)

12 Plaintiff, ORDER DENYING MOTION REGARDING SERVICE OF SUMMONS; 13 v. ORDER REQUIRING PLAINTIFF TO 14 HUNTER ANGLEA, et al., SUBMIT NOTICE

15 Defendants. (Docs. 1, 9)

16 THIRTY-DAY DEADLINE 17 Plaintiff has filed a complaint asserting constitutional claims against governmental 18 employees and/or entities. (Doc. 1.) Generally, the Court is required to screen complaints brought 19 by inmates seeking relief against a governmental entity or an officer or employee of a 20 governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion 21 thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state 22 a claim upon which relief may be granted, or that seek monetary relief from a defendant who is 23 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any 24 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 25 determines that . . . the action or appeal . . . fails to state a claim upon which relief may be 26 granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 27 /// 28 1 I. Pleading Standard 2 A complaint must contain “a short and plain statement of the claim showing that the 3 pleader is entitled to relief . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 4 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge 7 unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 8 (internal quotation marks and citation omitted). While factual allegations are accepted as true, 9 legal conclusions are not. Iqbal, 556 U.S. at 678. 10 Prisoners may bring § 1983 claims against individuals acting “under color of state law.” 11 See 42 U.S.C. § 1983, 28 U.S.C. § 1915(e) (2)(B)(ii). Under § 1983, Plaintiff must demonstrate 12 that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 13 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations that state a 14 plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 15 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to have their 16 pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 17 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of 18 misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 19 F.3d at 969. II. Plaintiff’s Allegations 20 Plaintiff’s claims arose following his transfer from Sierra Conservation Center in 21 Jamestown, California to Avenal State Prison in Avenal, California. He names as defendants SCC 22 Warden Hunter Anglea; SCC Lt. C. Hays; SCC Correctional Officer K. Petrey, Sr.; and ASP 23 Correctional Counselor I P. Johnson. Each defendant is sued in his or her individual capacity. 24 Plaintiff seeks declaratory relief and damages. 25 Plaintiff’s allegations may be fairly summarized as follows: 26 On or around May 29, 2015, plaintiff was transferred from SCC to ASP on a medical 27 transfer. He remained at ASP’s Outpatient Housing Unit until September 25, 2015. During that 28 1 time, plaintiff’s legal property was not transferred to him from SCC, even though plaintiff 2 informed Lt. Hays of the importance of these documents. CO Petrey discovered plaintiff’s 3 property at SCC sometime later, but he did not send it to plaintiff in a timely manner. At ASP, 4 plaintiff was unable to access the law library or law books. When he sought ASP Correctional 5 Counselor Johnson’s assistance, she was generally indifferent to plaintiff’s needs. As a result of 6 these factors, plaintiff was forced to abandon his appeal of his conviction and sentence. 7 Specifically, he claims that he was unable to meet an “expiring final extention [sic]” to file a 8 “Wende brief.” This had the related effect of preventing plaintiff from pursuing a petition for writ 9 of habeas corpus. 10 Upon his return to SCC, plaintiff became aware that his personal property, which he 11 values at $199.50, had been lost or destroyed. When plaintiff complained of the loss or 12 destruction of his property in an inmate grievance, Lt. Hays sought to cover up the incident by 13 misrepresenting critical details in order to clear himself and his subordinates of any wrongdoing. 14 III. Discussion 15 A. Access to Courts 16 Plaintiff’s first claim concerns the defendants’ failure to timely transfer his legal property, 17 resulting in the abandonment of plaintiff’s criminal appeal. 18 Prisoners have a constitutional right of access to the courts, protected by the First 19 Amendment right to petition and the Fourteenth Amendment right to substantive due process. 20 Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011). This right is limited to direct criminal 21 appeals, habeas petitions, and Section 1983 civil rights actions. Lewis v. Casey, 518 U.S. 343, 22 354 (1996). The right, however, “guarantees no particular methodology but rather the conferral of 23 a capability—the capability of bringing contemplated challenges to sentences or conditions of 24 confinement before the courts.... [I]t is this capability, rather than the capability of turning pages 25 in a law library, that is the touchstone” of the right of access to the courts. Id. at 356-57. 26 The Supreme Court has identified two categories of access-to-court claims. Christopher v. 27 Harbury, 536 U.S. 403, 412-13 (2002). The first category consists of “forward-looking” claims, 28 which allege that official action presently is frustrating the plaintiff's ability to prepare and file a 1 suit at the present time. Id. at 413. The object of “forward-looking” claims is to “place the 2 plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been 3 removed.” Id. The second category consists of “backward-looking” claims, which allege that due 4 to official action, a specific case “cannot now be tried (or tried with all material evidence), no 5 matter what official action may be in the future.” Id. at 413-14. These cases look “backward to a 6 time when specific litigation ended poorly, or could not have commenced, or could have 7 produced a remedy subsequently unobtainable.” Id. at 414. As plaintiff claims that defendants’ 8 actions caused him to miss a deadline with the California courts, this case is “backward-looking.” 9 To state a claim for denial of access to the courts, a plaintiff must establish that he or she 10 suffered an “actual injury”—that is, “actual prejudice with respect to contemplated or existing 11 litigation, such as the inability to meet a filing deadline or to present a claim.” Nev. Dep't of Corr. 12 v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis, 518 U.S. at 348-49). “Actual injury 13 is a jurisdictional requirement that flows from the standing doctrine and cannot be waived.” 14 Lewis, 518 U.S. at 348. Specifically, in a “backward-looking” access-to-courts claim, a plaintiff 15 must identify: (1) a “nonfrivolous,” “arguable” underlying claim, pled “in accordance with 16 Federal Rule of Civil Procedure 8(a), just as if it were being independently pursued”; (2) the 17 official acts that frustrated the litigation of that underlying claim; and (3) a “remedy available 18 under the access claim and presently unique to it” that is “not otherwise available in some suit 19 that may yet be brought.” Harbury, 536 U.S. at 415, 417-18. However, even if delays in providing 20 legal materials or assistance result in actual injury, they are “not of constitutional significance” if 21 “they are the product of prison regulations reasonably related to legitimate penological interests.” 22 Lewis, 518 U.S. at 362. 23 1. The Complaint Does Not Allege that Plaintiff Suffered an Actual Injury 24 The complaint does not satisfy the jurisdictional requirement of alleging an actual 25 injury—that is, it does not allege the non-frivolous argument plaintiff would have presented to a 26 California court. As the Supreme Court has explained, “the very point of recognizing any access 27 claim is to provide effective vindication for a separate and distinct right to seek judicial relief for 28 some wrong.... [T]he right is ancillary to the underlying claim, without which a plaintiff cannot 1 have suffered injury by being shut out of court.” Harbury, 536 U.S. at 414-15. “Like any other 2 element of an access claim, the underlying cause of action and its lost remedy must be addressed 3 by allegations in the complaint sufficient to give fair notice to a defendant.” Id. at 416. This is 4 because a prisoner's right to access courts does not include the right to present frivolous claims. 5 See Lewis, 518 U.S. at 353 n.3 (“Depriving someone of an arguable (though not yet established) 6 claim inflicts actual injury because it deprives him of something of value—arguable claims are 7 settled, bought, and sold. Depriving someone of a frivolous claim, on the other hand, deprives 8 him of nothing at all, except perhaps the punishment of Federal Rule of Civil Procedure 11 9 sanctions.”). 10 Plaintiff has failed to describe what non-frivolous legal argument or claim he would have 11 presented to a California court. See Harbury, 536 U.S. at 417-18 (“[T]he complaint should state 12 the underlying claim in accordance with Federal Rule of Civil Procedure 8(a), just as if it were 13 being independently pursued, and a like plain statement should describe any remedy available 14 under the access claim and presently unique to it.”). The complaint contains threadbare 15 contentions that plaintiff was forced to abandon “his appellate case” to challenge his “conviction 16 and sentence” and that he was unable to meet “the time constraints of an extension of the 17 appel[l]ate case” to file a “Wende brief.” 18 Notably, a Wende1 brief, is not a “brief” at all. Rather, it is an outline of the factual and 19 procedural posture of the case and does not identify any arguable appellate issues. Smith v. 20 Robbins, 528 U.S. 259, 265 (2000). A Wende brief filed by counsel, admits implicitly that an 21 appeal is frivolous. Id. This then allows the criminal defendant to file a brief to outline the errors 22 he believes occurred, despite that his attorney has found to appellate issues. Id. Regardless of 23 whether the defendant files a brief pro se, however, the Wende procedure places the burden on 24 the appellate court to review the entire record for error. Id. If the court finds a non-frivolous 25 arguable issue, the attorney is required to brief the issue. Id. If the court finds no error, it affirms 26 the conviction.2 Id. 27 1 People v. Wende, 25 Cal.3d 436 (1979). 28 2 In Smith at 276, 278-279, the Court found the Wende procedure to be constitutional. 1 The allegations in the complaint are insufficient to allege a “nonfrivolous” and “arguable” 2 underlying claim that is “more than hope.” Harbury, 536 U.S. at 416; see Rushdan v. R. Gear, 3 744 Fed. Appx. 510, 511 (9th Cir. 2018) (holding that district court, which held that it was not 4 enough for plaintiff merely to conclude that his underlying claim was non-frivolous, properly 5 dismissed prisoner’s access-to-courts claim because he failed to allege facts sufficient to show 6 that defendant caused an actual injury to a nonfrivolous legal claim). Moreover, the Wende 7 procedure requires the court of appeal to scour the record to determine whether there are non- 8 frivolous arguable issues regardless of whether Plaintiff filed a brief. Thus, the complaint fails to 9 demonstrate any actual injury. 10 2. The Complaint Does Not Allege Requisite Intent 11 “Section 1983 ‘contains no state-of-mind requirement independent of that necessary to 12 state a violation of the underlying constitutional right;’ therefore, the requisite mental state for 13 individual liability will change with the constitutional provision at issue.” OSU Student Alliance 14 v. Ray, 699 F.3d 1053, 1071-72 (9th Cir. 2012) (quoting Daniels v. Williams, 474 U.S. 327, 330 15 (1986)). Here, plaintiff asserts violations of the Fourteenth and First Amendments. 16 In Daniels v. Williams, the Supreme Court held that the Fourteenth Amendment’s Due 17 Process clause is not violated by negligence. 474 U.S. at 328 (“[T]he Due Process Clause is 18 simply not implicated by a negligent act of an official causing unintended loss of or injury to life, 19 liberty, or property.” (emphasis in original)). “[I]t is the deliberate, intentional abuse of 20 governmental power for the purpose of depriving a person of life, liberty or property that the 21 fourteenth amendment was designed to prevent.” Stevenson v. Koskey, 877 F.2d 1435, 1440-41 22 (9th Cir. 1989). 23 The Ninth Circuit has not published an opinion regarding whether intentional conduct is 24 required for a First Amendment access-to-courts claim. However, the Ninth Circuit cited Daniels 25 in an unpublished opinion to observe that it is “questionable” whether an access-to-courts claim 26 can be premised on “garden-variety negligence.” Merrick v. Inmate Legal Servs., 650 Fed. Appx. 27 333, 334 (9th Cir. 2016). Other circuit courts have held that negligence is insufficient for a First 28 Amendment access-to-courts claim. See, e.g., Pink v. Lester, 52 F.3d 73, 76 (4th Cir. 1995) 1 (holding that Daniels applies to both Fourteenth and First Amendment access-to-court claims, and 2 negligence in misrouting a form does not violate the First Amendment right to petition); Snyder 3 v. Nolen, 380 F.3d 279, 291 n.11 (7th Cir. 2004) (“[W]e have made clear that an allegation of 4 simple negligence will not support a claim that an official has denied an individual of access to 5 the courts.”); Scheeler v. City of St. Cloud, 402 F.3d 826, 830 (8th Cir. 2005) (explaining that in 6 order to prevail on a First Amendment access-to-courts claim, a plaintiff “must show that the 7 defendants acted with some intentional motivation to restrict their access to the courts”). 8 The complaint here contains only conclusory allegations that defendants acted 9 intentionally to deprive plaintiff of his right to access the courts. But none of the allegation in the 10 complaint connect any of the defendants to the alleged constitutional violations in a way that 11 would impose liability. With respect to Lt. Hays, CO Petrey, and Correctional Counselor 12 Johnson, there are no factual allegations that would support an inference that their actions 13 amounted to anything more than negligence. With respect to Warden Anglea, there is no 14 allegation that he had any knowledge of, or any connection with, any allegedly unconstitutional 15 treatment that plaintiff received at the hands of its subordinates. See Keates v. Koile, 883 F.3d 16 1228, 1243 (9th Cir. 2018). Nor does plaintiff set forth any factual allegations that Warden 17 Anglea personally promulgated any specific policy that had a direct causal connection with any 18 alleged constitutional injury. Rather, the complaint contains “conclusory allegations and 19 generalities, without any allegations of specific wrongdoing” by Warden Anglea. See Hydrick v. 20 Hunter, 669 F.3d 937, 942 (9th Cir. 2012). Such “bald and conclusory allegations are insufficient 21 to establish individual liability under 42 U.S.C. § 1983.” Id. (quotations omitted); see also Blantz 22 v. Cal. Dep't of Corr. & Rehab., 727 F.3d 917, 927 (9th Cir. 2013) (concluding that “conclusory 23 allegations” that a supervisory defendant “directed” other defendants, without factual assertions 24 to support the allegation, were insufficient to defeat a motion to dismiss). 25 B. Loss of Personal Property 26 Plaintiff’s second claim is premised on the loss or destruction of his personal property. 27 Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 728, 730 28 (9th Cir. 1974). However, a plaintiff has no due process claim based on the defendants’ 1 unauthorized deprivation of his personal property—whether intentional or negligent—if a 2 meaningful state post-deprivation remedy for his loss is available. See Hudson v. Palmer, 468 3 U.S. 517, 533 (1984). California’s tort claim process provides that adequate post-deprivation 4 remedy. Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810– 5 895) (“[A] negligent or intentional deprivation of a prisoner’s property fails to state a claim under 6 section 1983 if the state has an adequate post deprivation remedy.”); see also Teahan v. Wilhelm, 7 481 F. Supp. 2d 1115, 1120 (S.D. Cal. 2007); Kemp v. Skolnik, 2012 WL 366946, at *6 (D. Nev. 8 Feb. 3, 2012) (finding prisoner’s alleged loss or destruction of newspaper, magazines, and books 9 failed to state a Fourteenth Amendment claim pursuant to Hudson and noting that “[i]f Plaintiff 10 wishes to recoup the value of the alleged lost materials, he will have to file a claim in small 11 claims court in state court.”). Therefore, plaintiff fails to state a claim for defendants’ loss or 12 destruction of his personal property. 13 IV. Conclusion 14 Plaintiff’s complaint fails to state a claim on which relief may be granted. Because service 15 has not been deemed appropriate for any defendant, plaintiff’s motion regarding service of 16 summons (Doc. 9) will be denied. 17 The Court will grant plaintiff an opportunity to file an amended complaint. Noll v. 18 Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If plaintiff does not wish to amend, he may 19 instead file a notice of voluntary dismissal, and the action then will be terminated by operation of 20 law. Fed. R. Civ. P. 41(a)(1)(A)(i). Alternatively, plaintiff may forego amendment and notify the 21 Court that he wishes to stand on his complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 22 1064-65 (9th Cir. 2004) (plaintiff may elect to forego amendment). If the last option is chosen, 23 the undersigned will issue findings and recommendations to dismiss the complaint without leave 24 to amend, plaintiff will have an opportunity to object, and the matter will be decided by a District 25 Judge. 26 If plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a 27 deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth 28 “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting 1 Twombly, 550 U.S. at 555 (2007)). Plaintiff should note that although he has been granted the 2 opportunity to amend his complaint, it is not for the purposes of adding new and unrelated claims. 3 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff should carefully review this 4 screening order and focus his efforts on curing the deficiencies set forth above. 5 Finally, plaintiff is advised that Local Rule 220 requires that an amended complaint be 6 complete without reference to any prior pleading. As a general rule, an amended complaint 7 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an 8 amended complaint is filed, the original complaint no longer serves a function in the case. Id. 9 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement 10 of each defendant must be sufficiently alleged. The amended complaint should be clearly titled, in 11 bold font, “First Amended Complaint,” reference the appropriate case number, and be an original 12 signed under penalty of perjury. Plaintiff’s amended complaint should be brief. Fed. R. Civ. P. 13 8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to 14 relief above the speculative level . . .” Twombly, 550 U.S. at 555 (citations omitted). 15 Accordingly, the Court ORDERS that: 16 1. Plaintiff’s motion regarding service of summons (Doc. 9) is DENIED; 17 2. Within thirty days from the date of service of this order, plaintiff must file either a 18 first amended complaint curing the deficiencies identified by the Court in this 19 order, a notice of voluntary dismissal, or a notice of election to stand on the 20 complaint; and 21 3. If plaintiff fails to file a first amended complaint or notice of voluntary dismissal, 22 the Court will recommend the action be dismissed, with prejudice, for failure to 23 obey a court order and failure to state a claim. 24 IT IS SO ORDERED. 25

26 Dated: April 17, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 27