Silva v. Di Vittorio

658 F.3d 1090, 2011 U.S. App. LEXIS 19610, 2011 WL 4436248
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 26, 2011
Docket08-15620
StatusPublished
Cited by499 cases

This text of 658 F.3d 1090 (Silva v. Di Vittorio) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Silva v. Di Vittorio, 658 F.3d 1090, 2011 U.S. App. LEXIS 19610, 2011 WL 4436248 (9th Cir. 2011).

Opinions

Opinion by Judge KENDALL; Dissent by Judge O’SCANNLAIN.

[1095]*1095OPINION

KENDALL, District Judge:

Matthew Silva (“Silva”), a Washington State prisoner, appeals the district court’s sua sponte dismissal of his pro se civil rights action for failure to state a claim upon which relief may be granted. We have jurisdiction under 28 U.S.C. § 1291 to review the district court’s order dismissing Silva’s first amended complaint without leave to amend and, for the reasons set forth below, we reverse in part, affirm in part, and remand to the district court for proceedings consistent with this opinion. Specifically, we reverse the district court’s order dismissing Silva’s right to access the courts, retaliation, and state law conversion claims and we affirm the district court’s order dismissing Silva’s RICO claim.

I. BACKGROUND

A. Silva’s Complaint

On September 4, 2007, Silva filed a pro se civil rights complaint against Washington Assistant Attorney General Sara Olson, referred to on appeal as Sara Di Vittorio (“Di Vittorio”), and three Washington Department of Corrections (“WDOC”) and Corrections Corporation of America (“Corrections Corporation”) officials who work at the Florence Correctional Center (“FCC”), where Silva had previously been incarcerated. In his complaint, Silva sought relief under 42 U.S.C. § 1983 for alleged violations of his First and Fourteenth Amendment right of access to the courts. He also alleged supplemental state law claims for conversion and fraud. Along with his complaint, Silva moved to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).

The district court initially denied Silva’s motion to proceed IFP, concluding that the Prisoner Litigation Reform Act’s “three-strikes” provision barred his request to proceed IFP. See id. § 1915(g).1 The PLRA precludes a prisoner from proceeding IFP if, on three or more prior occasions, he filed an action or appeal that was dismissed because it was frivolous, malicious, or failed to state a claim upon which relief may be granted. Id. Citing Silva v. Washington, No. 2:98-cv-00659-WLD (W.D.Wash. Sept. 22, 1998); Silva v. Clarke, No. CV-05-414-MWL, 2006 WL 3246499 (E.D.Wash. Nov. 8, 2006); Silva v. Bush, No. C06-984-JLR (W.D.Wash. Apr. 16, 2007); and Silva v. Goddard, No. CV-06-02289-JAT (D.Ariz. Mar. 27, 2007), the district court concluded that at least three of the prior actions Silva had filed in federal court had been dismissed as frivolous, malicious, or because they failed to state a claim. The district court further found that because Silva was not under imminent danger of serious physical injury, the sole statutory exception to the “three-strikes” rule did not apply. See § 1915(g). Accordingly, the district court dismissed Silva’s complaint without prejudice for failure to prepay the filing fee.

Silva moved to reconsider, arguing that two of the four cases the district court counted as strikes should not count against him because, at the time he filed his complaint, his appeals were still pending before this court. The district court agreed and granted Silva’s motion to reconsider, [1096]*1096vacated its earlier dismissal, and allowed Silva to proceed IFP.

As obligated under 28 U.S.C. § 1915A, the district court then screened Silva’s complaint to determine whether he had a cognizable claim for relief. Without reaching the merits of Silva’s claims, the district court dismissed Silva’s complaint without prejudice because he had not used the district court’s approved form for pro se prisoner complaints. The district court granted Silva leave to file a first amended complaint, warning him that if he did not follow the pleading requirements, “the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.”

B. Silva’s first amended complaint

On January 16, 2008, Silva amended his complaint, this time suing Di Vittorio; Washington State Attorney General, Rob McKenna (“McKenna”); the Governor of Washington State, Christine Gregoire (“Gregoire”); a number of WDOC and Corrections Corporation officials; Corrections Corporation itself; and Trans-Cor Corporation, a prisoner transportation company (collectively “the Defendants”). In his first amended complaint (“amended complaint”), Silva reasserted his claim under § 1983 that the Defendants violated his First and Fourteenth Amendment right to access the courts and also alleged that the Defendants retaliated against him in violation of the First Amendment. Specifically, Silva alleged that as soon as he began pursuing civil rights lawsuits against prison officials, those officials began transferring him within and among prison facilities in Washington and Arizona and confiscating and destroying his legal documents and materials. According to Silva’s amended complaint, the Defendants’ actions proximately caused at least six cases to be dismissed, and hampered his ability to report the officials’ misconduct and to bring any future cases.

In his amended complaint, Silva also added a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. Silva alleged that his transfer to, and housing in, the FCC violated the RICO statute, specifically contending that the Defendants engaged in numerous instances of “racketeering activity” in violation of § 1961(1), including kidnapping, mail and wire fraud, witness tampering, and seizure of legal documents. Finally, Silva alleged that the Defendants’ seizure of his legal files constituted conversion.2

Again the district court screened Silva’s amended complaint pursuant to § 1915A, this time reaching the merits. The district court concluded that Silva’s amended complaint failed to state a claim upon which relief could be granted and dismissed the case with prejudice. Specifically, citing Lancaster Community Hospital v. Antelope Valley Hospital District, 940 F.2d 397, 404 (9th Cir.1991), the district court determined that Silva failed to state a RICO claim because he failed to allege sufficient facts to establish a pattern of racketeering activity, he failed to allege an injury to his business or property, and because government entities cannot violate RICO. Additionally, the district court concluded that Silva’s transfer to the FCC in Arizona did not constitute an act of “kidnapping” under § 1961(1).

As to Silva’s right to access the courts claim, the district court stated that the right “is only a right to bring petitions or complaints to the federal court and not a right to discover such claims or even to litigate them effectively once filed with a court.” Because the factual allegations underlying Silva’s access to courts claim [1097]*1097were “targeted at his ability to effectively litigate his cases beyond the pleading stage” the district court determined that Silva failed to state a claim upon which relief could be granted.

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Cite This Page — Counsel Stack

Bluebook (online)
658 F.3d 1090, 2011 U.S. App. LEXIS 19610, 2011 WL 4436248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silva-v-di-vittorio-ca9-2011.