1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT SNYDER, Case No.: 3:19-cv-01741-LAB-MDD CDCR #AC-9136, 12 ORDER DISMISSING SECOND Plaintiff, 13 AMENDED COMPLAINT vs. FOR FAILING TO STATE 14 A CLAIM PURSUANT KATHLEEN ALLISON, et al., 15 TO 28 U.S.C. § 1915A Defendants. 16 17 18 I. Procedural Background 19 On September 9, 2019, Plaintiff Robert Snyder, currently incarcerated at Richard J. 20 Donovan Correctional Facility (“RJD”) in San Diego, California and proceeding pro se, 21 filed this civil action pursuant to 42 U.S.C. § 1983 and a temporary restraining order 22 (“TRO”). See ECF No. 1 (“Compl.”). Snyder paid the $400 filing fee required by 28 U.S.C. 23 § 1914(a) on September 18, 2019. See ECF No. 4, Receipt No. CAS115493. The Court 24 denied the TRO and dismissed the Complaint on December 5, 2019 because Plaintiff had 25 failed to state a claim pursuant to 28 U.S.C. § 1915A(b). See ECF No. 9. Plaintiff was given 26 leave to amend, and on April 6, 2020, Plaintiff filed an Amended Complaint. See ECF No. 27 21. 28 1 On August 3, 2020, the Court dismissed Plaintiff’s First Amended Complaint 2 (“FAC”) because Plaintiff had again failed to state a claim pursuant to 28 U.S.C. 3 § 1915A(b). See ECF No. 24. Plaintiff was given until November 2, 2020 to file a Second 4 Amended Complaint. Id. On October 29, 2020, Plaintiff filed a Second Amended 5 Complaint (“SAC”). See ECF No. 28. 6 II. Plaintiff’s Allegations 7 In his SAC, Snyder repeats the allegations he made in his original Complaint and in 8 his FAC against Defendants Kathleen Allison, Secretary of the California Department of 9 Corrections and Rehabilitation (“CDCR”), Ana Maria Mondet, a supervisor of RJD’s 10 Education Department, and Chloe Tiscornia, RJD’s Facility A Librarian, who he generally 11 alleges have interfered with his ability to litigate his complaints against CDCR employees 12 and impeded his access to computers, provided deficient libraries, arbitrarily ordered the 13 closure of the library, limited time inside the library, created inflexible schedules, and 14 refused to respond to inmates requests. See Compl. at 4-11; FAC at 4-13; SAC at 2-12. In 15 his SAC, he specifically alleges that Allison has used applicable regulations to “suspend 16 library time,” and to “completely shut down library facilities . . . for several consecutive 17 months during the Covid-19 disease without making anything available in writing to 18 attempt to substantiate the closure past 16 days.” SAC at 6-7. He claims Allison has 19 “attempted to regulate CDCR’s libraries using her own personal set of ‘underground 20 regulations’” which are “designed to make successful prisoner litigation impossible.” Id. 21 at 7. He claims Mondet “oversees various techniques used by her codefendants, including 22 but not limited to . . . accept[ing] being illegally ordered by CDCR to close down library 23 program without just cause.” Id. at 8. He further alleges that Mondet “created an inflexible 24 schedule for inmates seeking to advance their understanding of the law,” and is “impossible 25 to correspond with.” Id. He claims Mondet “makes no operating plan to facilitate entrance 26 into the library,” and alleges that “at any given time there are no less than 5 immovable 27 obstacles standing in the way of physical library access,” which Mondet takes no 28 responsibility for removing, instead telling inmates to “talk to custody.” Id. at 9. And, he 1 repeats his claims from his original Complaint and his FAC that Tiscornia “wrote a series 2 of retaliatory disciplinary reports against several witnesses in this case,” contends that 3 Tiscornia had an “inconsistent approach to policies . . . depend[ing] on her mood,” and 4 used “pretextual excuses to close the library down.” Id. at 11-12. He notes that Tiscornia 5 “is no longer employed by RJD.” Id. at 2. 6 Plaintiff has also added a new Defendant, Dorothy Nowroozian, who he alleges 7 “joined the RJD education department shortly before the Covid-19 precautions were first 8 put into effect.” SAC at 12. Plaintiff alleges that Nowroozian “insisted [Priority Library 9 Users] PLU inmates use the institutional mail to conduct their business such as obtaining 10 copies and forms, receiving cases and other materials, etc.” instead of using the institution’s 11 “paging” service, whereby library personnel visit inmates’ cell doors and take requests for 12 library materials.” Id. at 13. Plaintiff claims Nowroozian failed to process Plaintiff’s PLU 13 requests and that as a result he missed a deadline for filing a petition for writ of certiorari, 14 Id. at 14. Plaintiff also alleges Nowroozian has repeatedly denied Plaintiff PLU access to 15 the library with “incoherent excuses.” Id. at 14-15. 16 III. Screening of Complaint pursuant to 28 U.S.C. § 1915A 17 A. Standard of Review 18 As with Plaintiff’s preceding two Complaints, the Court must conduct an initial 19 review of Snyder’s Complaint pursuant to 28 U.S.C. § 1915A, because he is a prisoner and 20 seeks “redress from a governmental entity or officer or employee of a governmental 21 entity.” See 28 U.S.C. § 1915A(a). Section 1915A “mandates early review—‘before 22 docketing [] or [] as soon as practicable after docketing’—for all complaints ‘in which a 23 prisoner seeks redress from a governmental entity or officer or employee of a governmental 24 entity.’” Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016). The mandatory 25 screening provisions of § 1915A apply to all prisoners, no matter their fee status, who bring 26 suit against a governmental entity, officer, or employee. See, e.g. Resnick v. Hayes, 213 27 F.3d 443, 446-47 (9th Cir. 2000). “On review, the court shall … dismiss the complaint, or 28 any portion of the complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon 1 which relief may be granted; or (2) seeks monetary relief from a defendant who is immune 2 from such relief.” Olivas v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283 (9th Cir. 3 2017) (quoting 28 U.S.C. § 1915A(b)). 4 B. Access to the Courts 5 As this Court has explained to Plaintiff on two preceding occasions, while prisoners 6 have a constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996); 7 Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other grounds by Lewis, 518 8 U.S. at 354, in order to state a claim of a denial of the right to access the courts, a prisoner 9 must establish that he has suffered “actual injury.” Lewis, 518 U.S. at 349. An “actual 10 injury” is “actual prejudice with respect to contemplated or existing litigation, such as the 11 inability to meet a filing deadline or to present a claim.” Id.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT SNYDER, Case No.: 3:19-cv-01741-LAB-MDD CDCR #AC-9136, 12 ORDER DISMISSING SECOND Plaintiff, 13 AMENDED COMPLAINT vs. FOR FAILING TO STATE 14 A CLAIM PURSUANT KATHLEEN ALLISON, et al., 15 TO 28 U.S.C. § 1915A Defendants. 16 17 18 I. Procedural Background 19 On September 9, 2019, Plaintiff Robert Snyder, currently incarcerated at Richard J. 20 Donovan Correctional Facility (“RJD”) in San Diego, California and proceeding pro se, 21 filed this civil action pursuant to 42 U.S.C. § 1983 and a temporary restraining order 22 (“TRO”). See ECF No. 1 (“Compl.”). Snyder paid the $400 filing fee required by 28 U.S.C. 23 § 1914(a) on September 18, 2019. See ECF No. 4, Receipt No. CAS115493. The Court 24 denied the TRO and dismissed the Complaint on December 5, 2019 because Plaintiff had 25 failed to state a claim pursuant to 28 U.S.C. § 1915A(b). See ECF No. 9. Plaintiff was given 26 leave to amend, and on April 6, 2020, Plaintiff filed an Amended Complaint. See ECF No. 27 21. 28 1 On August 3, 2020, the Court dismissed Plaintiff’s First Amended Complaint 2 (“FAC”) because Plaintiff had again failed to state a claim pursuant to 28 U.S.C. 3 § 1915A(b). See ECF No. 24. Plaintiff was given until November 2, 2020 to file a Second 4 Amended Complaint. Id. On October 29, 2020, Plaintiff filed a Second Amended 5 Complaint (“SAC”). See ECF No. 28. 6 II. Plaintiff’s Allegations 7 In his SAC, Snyder repeats the allegations he made in his original Complaint and in 8 his FAC against Defendants Kathleen Allison, Secretary of the California Department of 9 Corrections and Rehabilitation (“CDCR”), Ana Maria Mondet, a supervisor of RJD’s 10 Education Department, and Chloe Tiscornia, RJD’s Facility A Librarian, who he generally 11 alleges have interfered with his ability to litigate his complaints against CDCR employees 12 and impeded his access to computers, provided deficient libraries, arbitrarily ordered the 13 closure of the library, limited time inside the library, created inflexible schedules, and 14 refused to respond to inmates requests. See Compl. at 4-11; FAC at 4-13; SAC at 2-12. In 15 his SAC, he specifically alleges that Allison has used applicable regulations to “suspend 16 library time,” and to “completely shut down library facilities . . . for several consecutive 17 months during the Covid-19 disease without making anything available in writing to 18 attempt to substantiate the closure past 16 days.” SAC at 6-7. He claims Allison has 19 “attempted to regulate CDCR’s libraries using her own personal set of ‘underground 20 regulations’” which are “designed to make successful prisoner litigation impossible.” Id. 21 at 7. He claims Mondet “oversees various techniques used by her codefendants, including 22 but not limited to . . . accept[ing] being illegally ordered by CDCR to close down library 23 program without just cause.” Id. at 8. He further alleges that Mondet “created an inflexible 24 schedule for inmates seeking to advance their understanding of the law,” and is “impossible 25 to correspond with.” Id. He claims Mondet “makes no operating plan to facilitate entrance 26 into the library,” and alleges that “at any given time there are no less than 5 immovable 27 obstacles standing in the way of physical library access,” which Mondet takes no 28 responsibility for removing, instead telling inmates to “talk to custody.” Id. at 9. And, he 1 repeats his claims from his original Complaint and his FAC that Tiscornia “wrote a series 2 of retaliatory disciplinary reports against several witnesses in this case,” contends that 3 Tiscornia had an “inconsistent approach to policies . . . depend[ing] on her mood,” and 4 used “pretextual excuses to close the library down.” Id. at 11-12. He notes that Tiscornia 5 “is no longer employed by RJD.” Id. at 2. 6 Plaintiff has also added a new Defendant, Dorothy Nowroozian, who he alleges 7 “joined the RJD education department shortly before the Covid-19 precautions were first 8 put into effect.” SAC at 12. Plaintiff alleges that Nowroozian “insisted [Priority Library 9 Users] PLU inmates use the institutional mail to conduct their business such as obtaining 10 copies and forms, receiving cases and other materials, etc.” instead of using the institution’s 11 “paging” service, whereby library personnel visit inmates’ cell doors and take requests for 12 library materials.” Id. at 13. Plaintiff claims Nowroozian failed to process Plaintiff’s PLU 13 requests and that as a result he missed a deadline for filing a petition for writ of certiorari, 14 Id. at 14. Plaintiff also alleges Nowroozian has repeatedly denied Plaintiff PLU access to 15 the library with “incoherent excuses.” Id. at 14-15. 16 III. Screening of Complaint pursuant to 28 U.S.C. § 1915A 17 A. Standard of Review 18 As with Plaintiff’s preceding two Complaints, the Court must conduct an initial 19 review of Snyder’s Complaint pursuant to 28 U.S.C. § 1915A, because he is a prisoner and 20 seeks “redress from a governmental entity or officer or employee of a governmental 21 entity.” See 28 U.S.C. § 1915A(a). Section 1915A “mandates early review—‘before 22 docketing [] or [] as soon as practicable after docketing’—for all complaints ‘in which a 23 prisoner seeks redress from a governmental entity or officer or employee of a governmental 24 entity.’” Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016). The mandatory 25 screening provisions of § 1915A apply to all prisoners, no matter their fee status, who bring 26 suit against a governmental entity, officer, or employee. See, e.g. Resnick v. Hayes, 213 27 F.3d 443, 446-47 (9th Cir. 2000). “On review, the court shall … dismiss the complaint, or 28 any portion of the complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon 1 which relief may be granted; or (2) seeks monetary relief from a defendant who is immune 2 from such relief.” Olivas v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283 (9th Cir. 3 2017) (quoting 28 U.S.C. § 1915A(b)). 4 B. Access to the Courts 5 As this Court has explained to Plaintiff on two preceding occasions, while prisoners 6 have a constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996); 7 Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other grounds by Lewis, 518 8 U.S. at 354, in order to state a claim of a denial of the right to access the courts, a prisoner 9 must establish that he has suffered “actual injury.” Lewis, 518 U.S. at 349. An “actual 10 injury” is “actual prejudice with respect to contemplated or existing litigation, such as the 11 inability to meet a filing deadline or to present a claim.” Id. at 348 (citation and internal 12 quotations omitted). The right of access does not require the State to “enable the prisoner 13 to discover grievances,” or even to “litigate effectively once in court.” Id. at 354; see also 14 Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the “inability 15 to file a complaint or defend against a charge”). Instead, Lewis holds: 16 [T]he injury requirement is not satisfied by just any type of frustrated legal claim . . . . Bounds does not guarantee inmates the wherewithal to transform 17 themselves into litigating engines capable of filing everything from 18 shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, 19 directly or collaterally, and in order to challenge the conditions of their 20 confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and 21 incarceration. 22 23 Id. at 346; see also Spence v. Beard, No. 2:16-CV-1828 KJN P, 2017 WL 896293, at *2-3 24 (E.D. Cal. Mar. 6, 2017). 25 In addition to alleging an “actual injury,” Plaintiff must also plead facts sufficient to 26 describe the “non-frivolous” or “arguable” nature of underlying claim he contends was lost 27 as result of Defendants’ actions. Christopher v. Harbury, 536 U.S. 403, 413-14 (2002). The 28 / / / 1 nature and description of the underlying claim must be set forth in the pleading “as if it 2 were being independently pursued.” Id. at 417. 3 Although Snyder does allege an “actual injury” – a missed deadline for filing a 4 petition for writ of certiorari – he has not explained the “non-frivolous” or “arguable” 5 nature of his claims. See Christopher, 536 U.S. at 413-14. As this Court explained to 6 Snyder in its December 5, 2019 Order dismissing his original Complaint, and in its August 7 3, 2020 Order dismissing his FAC, his “generalized allegations fail to state a legally 8 plausible access to courts claim under Lewis because ‘an inmate cannot establish relevant 9 actual injury simply by establishing that his prison’s law library or legal assistance program 10 is subpar in some theoretical sense.’” See ECF No. 9 at 7; ECF No. 24 at 6, citing Lewis, 11 518 U.S. at 351. “[P]rison law libraries and legal assistance programs are not ends in 12 themselves,” and Lewis makes clear that courts must “leave it to prison officials to 13 determine how best to ensure that inmates…have a reasonably adequate opportunity to file 14 nonfrivolous legal claims challenging their convictions or conditions of confinement.” Id. 15 at 356. “[I]t is that capability, rather than the capability of turning pages in a law library 16 that is the touchstone.” Id. at 357. 17 C. Retaliation 18 Snyder’s allegations of retaliation against Defendant Tiscornia is also the same as 19 the allegations he made in his FAC which this Court dismissed because he had failed to 20 state a claim. See Order, ECF No. 24 at 6-8. As this Court informed Plaintiff in its August 21 3, 2020 Order, to state a valid First Amendment retaliation claim, Snyder must assert: (1) 22 a state actor took some adverse action against him, (2) the adverse action was taken because 23 he engaged in some protected conduct, (3) his First Amendment rights were chilled and (4) 24 the adverse action “did not reasonably advance a legitimate correctional goal.” Rhodes v. 25 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Although Snyder alleges a state actor 26 (Tiscornia) took some adverse action against him (filed a disciplinary report), because he 27 engaged in protected conduct (to punish him for complaining to her supervisor), see SAC 28 at 12, he has not made a sufficient showing that his First Amendment rights were chilled 1 || or that the disciplinary report did not “reasonably advance a legitimate correctional goal.” 2 || Rhodes, 408 F.3d at 567-68. The allegations he makes against the new Defendant 3 Conclusion and Orders 4 For the reasons explained, the Court DISMISSES Plaintiff's Second Amendes 5 ||Complaint [ECF No. 28] for failing to state a claim upon which relief may be grante 6 || pursuant to 28 U.S.C. § 1915A(b). Because amendment would be futile, the dismissa 7 without leave to amend. 8 IT IS SO ORDERED. 9 10 || Dated: January 8, 2021 / wi 4. ‘by, i Vy 11 Hon. Larfy Alan Burns 12 Chief Judge, United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6