Saddozai v. Atchley

• Court: District Court, N.D. California
• Decided: March 5, 2021
• Docket: 5:20-cv-07534
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHIKEB SADDOZAI, 11 Case No. 20-07534 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH LEAVE TO AMEND; ADDRESSING v. 13 OBJECTION TO DENIAL OF

PRIOR MOTION AND DENYING

14 REQUESTS FOR LIMITED M.B. ATCHLEY, et al., APPOINTMENT OF COUNSEL 15 AND RECUSAL Defendants.

16 (Docket Nos. 11) 17 18 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against prison staff and officials at Salinas Valley State Prison (“SVPS”), as 20 well as the Director of the California Department of Corrections and Rehabilitation 21 (“CDCR”). Dkt. No. 1. Plaintiff’s motions for leave to proceed in forma pauperis will be 22 addressed in a separate order. The Court also herein addresses Plaintiff’s “objection” to 23 the denial of his motion for a temporary restraining order and several requests made 24 therein. Dkt. No. 11. 25 26 DISCUSION 27 A. Standard of Review 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 4 upon which relief may be granted or seek monetary relief from a defendant who is immune 5 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 6 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 8 elements: (1) that a right secured by the Constitution or laws of the United States was 9 violated, and (2) that the alleged violation was committed by a person acting under the 10 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 11 B. Plaintiff’s Claims 12 Plaintiff claims that during June through September 2020, he was repeatedly denied 13 access to law library services and resources “which are essential services needed to initiate 14 and maintain active court deadlines, appeals, grievances in pro se.” Dkt. No. 1 at 4. 15 Plaintiff claims Defendants D. Farmer and S. Tomlinson were in charge of supervising the 16 facility law library and repeatedly denied his request for law library access and restricted 17 his ability to commence legal actions. Id. at 4-5. Plaintiff claims he notified Defendants 18 Farmer, Tomlinson, Warden M. N. Atchley and Connie Gipson, the Director of the CDCR, 19 through numerous requests and grievances of the denial to these services. Id. at 4. He 20 claims Defendants Farmer and Tomlinson “failed and refused” to respond to his requests. 21 Id. at 5. He claims Warden Atchley had the power to correct these problems but “failed to 22 provide adequate or qualified staff, conspired or acted jointly under the color of state law, 23 pursuant to a policy or custom with” Defendant Gipson. Id. at 6. Plaintiff claims 24 Defendant Gipson is liable for Warden Atchley’s actions as a “policy-maker[], [who] 25 writes regulations or gives orders, at least for the purpose of prison management.” Id. 26 Plaintiff claims that his rights to meaningful access to the courts to be free from 1 as well his right to due process under “V, IV, XIV” Amendments. Id. Plaintiff also asserts 2 the Court has supplemental jurisdiction over his state law claims. Id. 3 1. Access to the Courts 4 Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 5 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977).1 To establish a 6 claim for any violation of the right of access to the courts, the prisoner must prove that 7 there was an inadequacy in the prison’s legal access program (e.g., law library or legal 8 assistance) that caused him an actual injury. See Lewis, 518 U.S. at 349-51. To prove an 9 actual injury, the prisoner must show that the inadequacy in the prison's program hindered 10 his efforts to pursue a non-frivolous claim concerning his conviction or conditions of 11 confinement. See id. at 351, 354-55. 12 Plaintiff’s allegations are insufficient to state a denial of access to the courts claim 13 because he has failed to allege actual injury. The only specific incident during this four 14 month period which he describes in detail occurred on or about July 21, 2020, when 15 Defendant Tomlinson “stole and kept” copies of his legal pleadings for a civil action, and 16 then had him removed from the law library. Dkt. No. 1 at 7-8. Plaintiff claims generally 17 that this incident caused him to “default” on his active court deadlines, appeals and 18 grievances, without any specific detail as to what those matters involved. Id. at 8. Even 19 assuming that this incident amounts to an inadequacy in the legal access program, Plaintiff 20 1 The constitutional source of the right of access to the courts is not settled. See 21 Christopher v. Harbury, 536 U.S. 403, 413-14 & 415 n.12 (2002); Lewis v. Casey, 518 U.S. 343, 366-67 (1996) (Thomas, J., concurring). Supreme Court decisions have 22 grounded the right in the Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the 23 Fourteenth Amendment Equal Protection and Due Process Clauses. Christopher, 536 U.S. at 415 n.12 (citing cases). The Ninth Circuit also has found various constitutional sources 24 for the right. See, e.g., Cornett v. Donovan, 51 F.3d 894, 897 (9th Cir. 1995) (right grounded in due process and equal protection clauses); Bradley v. Hall, 64 F.3d 1276, 25 1279 (9th Cir. 1995) (use of prison grievance procedure protected by prisoner's right to meaningful access to courts along with broader right to petition government for redress of 26 grievances); see also Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1 must still demonstrate that the alleged shortcomings in the program caused him an actual 2 injury by hindering his efforts to pursue a legal claim. Lewis, 518 U.S. at 351.2 It is 3 “actual prejudice with respect to contemplated or existing litigation, such as the inability to 4 meet a filing deadline or to present a claim.” Id. at 348. Here, Plaintiff has failed to 5 describe what non-frivolous claim concerning his conviction or conditions of confinement 6 he was hindered from pursuing. See Lewis, 518 U.S. at 351, 354-55. Plaintiff shall be 7 afforded one opportunity to file an amended complaint to attempt to allege sufficient facts 8 to state a cognizable denial of access to the courts claim. If there was a specific deadline 9 that he was prevented from meeting, he must identify the specific case number or 10 grievance, the non-frivolous claim he was pursuing, and the actual injury he suffered due 11 to the hindrance. Lastly, Plaintiff must specifically tie the actual injury he suffered to the 12 actions of a specific Defendant. 13 Plaintiff’s allegations are also insufficient to state a claim against Defendant 14 Warden Atchley. A supervisor may be liable under section 1983 upon a showing of (1) 15 personal involvement in the constitutional deprivation or (2) a sufficient causal connection 16 between the supervisor’s wrongful conduct and the constitutional violation. Henry A. v. 17 Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012). Plaintiff claims Defendant Atchley had 18 the power to correct these problems but “failed to provide adequate or qualified staff.” 19 Dkt. No. 1 at 5-6. However, Plaintiff makes no allegation that Defendant Atchley was 20 personally involved in the denial of access to the courts or that Defendant engaged in any 21 specific wrongful conduct that is causally connected with the alleged constitutional 22 violation. Furthermore, if Plaintiff fails to state a cognizable claim against any 23 subordinate, it cannot be said that he can state a claim against the supervisor. Accordingly, 24 2 Examples of impermissible hindrances include: a prisoner whose complaint was 25 dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison’s legal assistance facilities, he could not have known; and a prisoner who had 26 “suffered arguably actionable harm” that he wished to bring to the attention of the court, 1 the claim against Defendant Atchley will be dismissed but with leave to amend for 2 Plaintiff to attempt to allege sufficient facts to state a claim if he can do so in good faith. 3 Lasty, Plaintiff’s allegations against Defendant Gipson are also insufficient. If he is 4 attempting to hold Defendant Gipson “liable for Warden Atchley’s actions,” then he must 5 allege that Defendant Gipson was in a supervisory position over Warden Atchley. This is 6 unlikely since Defendant Gipson, as Director of the CDCR, is not directly involved in the 7 day-to-day operation of specific prisons like SVSP. Furthermore, Plaintiff claims that 8 there was a conspiracy between Warden Atchley and Defendant Gipson “pursuant to a 9 policy or custom.” Dkt. No. 1 at 6. However, a conspiracy is not itself a constitutional tort 10 under 42 U.S.C. § 1983. Lacey v. Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012) (en 11 banc). It does not enlarge the nature of the claims asserted by the plaintiff, as there must 12 always be an underlying constitutional violation. Id. Plaintiff has failed to do so. 13 Furthermore, Plaintiff refers vaguely to a “policy or custom” without explaining that 14 policy or custom. If he believes that his constitutional rights were violated because of an 15 impermissible policy or custom, he may attempt to state a claim under Monell v. Dep't of 16 Social Servs., 436 U.S. 658 (1978). To impose municipal liability under § 1983 for a 17 violation of constitutional rights resulting from governmental inaction or omission, a 18 plaintiff must show: “(1) that he possessed a constitutional right of which he or she was 19 deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate 20 indifference to the plaintiff's constitutional rights; and (4) that the policy is the moving 21 force behind the constitutional violation.” Oviatt By and Through Waugh v. Pearce, 954 22 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 389 23 (1989) (internal quotation marks omitted). Plaintiff may attempt to state a Monell claim in 24 the amended complaint if he can do so in good faith. 25 In preparing an amended complaint, Plaintiff should keep the following principles 26 in mind. Liability may be imposed on an individual defendant under § 1983 only if 1 protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of 2 Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a 3 constitutional right within the meaning of section 1983 if he does an affirmative act, 4 participates in another’s affirmative act or omits to perform an act which he is legally 5 required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 6 F.2d at 633. 7 2. Retaliation 8 “Within the prison context, a viable claim of First Amendment retaliation entails 9 five basic elements: (1) An assertion that a state actor took some adverse action against an 10 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 11 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 12 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 13 Cir. 2005) (footnote omitted). 14 Plaintiff claims generally that when his library time was cut short on July 21, 2020, 15 it was “further subjection to retaliation, harassment.” Dkt. No. 1 at 8. However, his 16 allegations are insufficient to establish all five elements for a retaliation claim. For 17 example, while the denial of library access may be an adverse action and the protected 18 conduct was the right to petition the government for a redress of grievances under the First 19 Amendment, Plaintiff fails to connect the adverse action with the protected conduct, i.e., 20 that Defendants acted “because of” Plaintiff’s protected conduct, which is the second 21 element. Furthermore, nowhere does Plaintiff allege that Defendant’s actions chilled the 22 exercise of his First Amendment rights and that the action did not reasonably advance a 23 legitimate correctional goal, the fourth and fifth elements. Plaintiff shall be afforded one 24 opportunity to file an amended complaint to attempt to allege sufficient facts to state a 25 cognizable retaliation claim against each Defendant he believes is liable. 26 3. Remaining Claims 1 rights under the “I, V, IV, VI, VIII, XIV Amendments” as well his right to due process 2 under “V, IV, XIV” Amendments. Dkt. No. 1 at 2. The Court has already discussed 3 Plaintiff’s claim regarding access to the courts above, the constitutional source of which is 4 not settled. See supra at 3, fn. 1. Perhaps that is why Plaintiff cited to multiple 5 amendments in asserting this claim. However, if Plaintiff intended to assert any other 6 specific claims, he may do so in the amended complaint provided he makes specific factual 7 allegations in support. Plaintiff may also include state law claims, but he must specifically 8 identify the claims he is raising under state law rather than assert that the Court may take 9 supplemental jurisdiction over state law claims. 10 With respect to the claim that his due process rights were violated, there are 11 insufficient allegations to indicate that Plaintiff was denied some sort of process in the 12 denial of access to the law library and resources. To the extent that he is implying that the 13 lack of response to his requests and grievances constitutes a denial of due process, he is 14 mistaken. California Code of Regulations, title 15 sections 1073 and 3084 grant prisoners 15 in the county jails and state prisons a purely procedural right: the right to have a prison 16 appeal.3 The regulations simply require the establishment of a procedural structure for 17 reviewing prisoner complaints and set forth no substantive standards; instead, they provide 18 for flexible appeal time limits, see Cal. Code Regs. tit. 15, § 3084.6, and, at most, that “no 19 reprisal shall be taken against an inmate or parolee for filing an appeal,” id. § 3084.1(d). A 20 provision that merely provides procedural requirements, even if mandatory, cannot form 21 the basis of a constitutionally cognizable liberty interest. See Smith v. Noonan, 992 F.2d 22 987, 989 (9th Cir. 1993); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) 23 (prison grievance procedure is procedural right that does not give rise to protected liberty 24 interest requiring procedural protections of Due Process Clause); Buckley v. Barlow, 997 25 F.2d 494, 495 (8th Cir. 1993) (same); Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 26 1 1982) (same). A prison official’s failure to process grievances, without more, accordingly 2 is not actionable under § 1983. See Buckley, 997 F.2d at 495; see also Ramirez v. Galaza, 3 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner’s claimed loss of a liberty interest 4 in the processing of his appeals does not violate due process because prisoners lack a 5 separate constitutional entitlement to a specific prison grievance system). Furthermore, 6 although there certainly is a right to petition the government for redress of grievances (a 7 First Amendment right), there is no right to a response or any particular action. See Flick 8 v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (“prisoner's right to petition the government for 9 redress ... is not compromised by the prison’s refusal to entertain his grievance.”). 10 Accordingly, a due process claim based on his unanswered grievances fails to state a claim 11 for relief. 12 C. Objection to Order Denying Motion for Temporary Restraining Order 13 Early in this matter, Plaintiff filed a motion for a temporary restraining order 14 directing Defendants to “cease and desist” from denying him access to the law library, 15 threatening him with false disciplinary actions to obstruct his legal litigations, and 16 interfering with his access to the courts, among other actions. Dkt. No. 5 at 2-3. The 17 Court denied the motion without prejudice because Plaintiff had failed to satisfy all the 18 requirements under Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 19 (2008), i.e., likelihood of success on the merits, irreparable harm, balance of equities tips 20 in his favor, and an injunction is in the public interest. Dkt. No. 10 at 2-3. Plaintiff has 21 filed an objection to the Court’s decision, and requests the following: “1) courts provide 22 plaintiff each citation relied on for ruling with copy of plaintiff’s original TRO pleadings, 23 2) appointment of counsel for limited purpose to assist plaintiff with legal resources and 24 services.” Dkt. No. 11 at 2. He also asserts “peremptory challenge” against the Court 25 based on his belief that the Undersigned is “demonstrating personal bias, prejudice and [is] 26 unable to be fair and impartial on preceding as for example: TRO to prevent irreparable 1 The Court construes Plaintiff’s “objection” as a motion for reconsideration. 2 However, there was nothing improper in the Court’s denial of Plaintiff’s motion for a 3 TRO. This initial review order confirms that Plaintiff has yet to state cognizable claims 4 against any named Defendant such that it cannot be said that he has established likelihood 5 of success on the merits to warrant a TRO at this time. And where the court concludes the 6 movant has failed to show a likelihood of success on the merits, the court, in its discretion, 7 need not consider whether the movant would suffer irreparable injury. Guzman v. Shewry, 8 552 F.3d 941, 948 (9th Cir. 2009). Accordingly, the motion for reconsideration of the 9 denial of a TRO is DENIED. 10 Plaintiff requests counsel for the “limited purpose to assist… with legal resources 11 and services (i.e., legal copies, citations, envelopes, draft paper, legal research, etc.) 12 necessary for due process, that are repeatedly denied to plaintiff.” Dkt. No. 11 at 2. The 13 decision to request counsel to represent an indigent litigant under § 1915 is within “the 14 sound discretion of the trial court and is granted only in exceptional circumstances.” 15 Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). Plaintiff’s asserted grounds, 16 which are challenges faced by all pro se prisoner plaintiffs, do not establish exceptional 17 circumstances. Accordingly, the motion for limited appointment of counsel is DENIED 18 for lack of exceptional circumstances. See Agyeman v. Corrections Corp. of America, 390 19 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525; Terrell v. Brewer, 935 F.2d 20 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 21 Lastly, with respect to Plaintiff’s “peremptory challenge” against the undersigned, 22 the Court will construe the request as a motion for recusal. Motions to recuse a district 23 court judge fall under two statutes, 28 U.S.C. § 144 and 28 U.S.C. § 455. The substantive 24 standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455 is the same: Whether a 25 reasonable person with knowledge of all the facts would conclude that the judge’s 26 impartiality might reasonably be questioned. United States v. McTiernan, 695 F.3d 882, 1 omitted). Sections 144 and 455 ask whether a reasonable person perceives a significant 2 risk that the judge will resolve the case on a basis other than the merits. Clemens v. United 3 States Dist. Ct. for the Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th Cir. 2005). The 4 reasonable person in this context means a well-informed, thoughtful observer, as opposed 5 to a hypersensitive or unduly suspicious person. Id. 6 As a federal judge is presumed to be impartial, a substantial burden is imposed on 7 the party claiming bias or prejudice to show that this is not the case. See United States v. 8 Zagari, 419 F. Supp. 494, 501 (N.D. Cal. 1976). Plaintiff asserts that this Court has 9 demonstrated “personal bias, prejudice and [is] unable to be fair and impartial on 10 preceding as for example: TRO to prevent irreparable harm.” Dkt. No. 11 at 2. However, 11 as the Court explained above, there was nothing improper in its denial of Plaintiff’s request 12 for a TRO because his pleading was insufficient under the applicable law. See supra at 8. 13 Plaintiff may appeal the decision to the Ninth Circuit, as indeed it appears that he already 14 has, Dkt. No. 12, but otherwise has no basis for moving to recuse the Court from this 15 matter. The motion for recusal is DENIED. 16 17 CONCLUSION 18 For the foregoing reasons, the Court orders as follows: 19 The complaint is DISMISSED with leave to amend. Within twenty-eight 20 (28) days of the date this order is filed, Plaintiff shall file an amended complaint to state 21 sufficient facts to state a deliberate indifference claim as described above. The amended 22 complaint must include the caption and civil case number used in this order, Case No. C 23 20-07534 BLF (PR), and the words “AMENDED COMPLAINT” on the first page. If 24 using the court form complaint, Plaintiff must answer all the questions on the form in order 25 for the action to proceed. 26 The amended complaint supersedes the original, the latter being treated thereafter as 1 |} Consequently, claims not included in an amended complaint are no longer claims and 2 || defendants not named in an amended complaint are no longer defendants. See Ferdik v. 3 || Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). 4 Failure to respond in accordance with this order in the time provided will 5 || result in the dismissal of this action without prejudice and without further notice to 6 Plaintiff. 7 The Clerk shall include two copies of the court’s complaint with a copy of this 8 || order to Plaintiff. Also in response to his request, the Clerk shall include a copy of g || Plaintiff's TRO motion, filed under Docket No. 5, with a copy of this order. 10 IT IS SO ORDERED. 11 || Dated: _ March 5, 2021 fede Lely. fucenuen/ BETH LABSON FREEMAN United States District Judge 13 14 o 15 16

Oo Z 18 19 20 21 22 23 24 25 Order of Dismissal with Leave to Amend; Addressing Objection PRO-SE\BLF\CR.20\07534Saddozai_dwlta 26 27