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MAYWEATHERS v. WOODFORD

December 20, 2005.

KARLUK KHAN MAYWEATHERS, CDC #D-32829, Plaintiff,
v.
J. WOODFORD, et al., Defendants.



The opinion of the court was delivered by: WILLIAM HAYES, District Judge

ORDER:
(1)DENYING FIFTH MOTION FOR APPOINTMENT OF COUNSEL; AND,
(2) DISMISSING SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b)
On April 7, 2005, Plaintiff, an inmate incarcerated at Calipatria State Prison in Imperial, California and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, accompanied by a Motion to proceed in forma pauperis. (Doc. Nos. 1-2.) In the Complaint, Plaintiff claimed that the Defendants, the Director of the California Department of Corrections and eight Calipatria prison officials, violated his rights to due process, of access to the courts, to equal protection, to the free exercise of his religious beliefs, and to be free from cruel and unusual punishment, when they delayed responding to his inmate grievances and responded in an unsatisfactory manner, failed to provide sanitary or adequately nutritious food, denied him access to the recreational library, retaliated against him for filing a lawsuit, and failed to accommodate his religious dietary needs. (Compl. at 4-7.) Plaintiff sought monetary damages as well as declaratory and injunctive relief preventing Defendants from continuing to violate his rights and ordering his transfer to a prison with a lower custody level. (Id. at 9.)

On May 4, 2005, the Court granted Plaintiff leave to proceed in forma pauperis and dismissed the Complaint without prejudice for failure to state a claim upon which relief may be granted. (See 5/4/05 Order at 2-11.) Plaintiff was notified of the pleading defects of his Complaint and was granted leave to file an amended complaint. (Id.) On May 13, 2005, Plaintiff filed a Motion for appointment of counsel, which the Court denied without prejudice. (Doc. Nos. 4-5.)

  On May 27, 2005, Plaintiff filed a First Amended Complaint which named twenty-three Defendants. (Doc. No. 7.) Plaintiff submitted exhibits in support of the First Amended Complaint on June 14, 2005. (Doc. No. 11.) On July 1, 2005, Plaintiff submitted a second set of exhibits in support of the First Amended Complaint, and filed a second Motion for appointment of counsel. (Doc. Nos. 14, 16.) Plaintiff submitted a third set of exhibits in support of the First Amended Complaint on July 22, 2005. (Doc. No. 18.) On August 3, 2005, the Court denied Plaintiff's second Motion for appointment of counsel and dismissed the First Amended Complaint sua sponte for failure to state a claim. (Doc. No. 19.) The Court once again notified Plaintiff of the defects of his pleading and once again provided him the opportunity to amend his complaint in an attempt to cure those defects.

  On September 13, 2005, Plaintiff filed a Second Amended Complaint which names forty-three Defendants. (Doc. No. 22.) He thereafter filed a set of exhibits in support of the Second Amended Complaint. (Doc. No. 23.) Plaintiff filed a second set of exhibits on October 3, 2005, and a third set of exhibits on November 15, 2005. (Doc. Nos. 24, 33.) Plaintiff filed his third and fourth Motions for appointment of counsel on October 14 and 27, 2005 respectively, accompanied by a declaration in support thereof. (Doc. Nos. 26-28.) Plaintiff filed a Motion to Add Additional Defendants on November 7, 2005, seeking to add five additional Defendants to this action. (Doc. No. 30.) Plaintiff's third and fourth Motions for appointment of counsel were denied on November 16, 2005. (Doc. No. 31.) Plaintiff filed a fifth Motion for appointment of counsel on December 1, 2005. (Doc. No. 34.) For the following reasons, the Court DENIES Plaintiff's fifth Motion for appointment of counsel and DISMISSES the Second Amended Complaint, as supplemented by the Motion to Add Defendants, sua sponte for failure to state a claim upon which relief may be granted. With respect to Plaintiff's due process, access to courts, Eighth Amendment, retaliation and conspiracy claims, it is now absolutely clear Plaintiff is unable to further amend his complaint to state a claim upon which relief may be granted, and those claims are dismissed without further leave to amend. With respect to the remaining First Amendment/RLUIPA claim, and Plaintiff's claim that his equal protection rights were violated by a race-based policy regarding the assignment of cell mates, the Court will once again notify Plaintiff of the defects of his pleading and will provide Plaintiff one final opportunity to amend his complaint in an attempt to cure those defects. Plaintiff is cautioned that if the Third Amended Complaint once again fails to cure the pleading defects identified in this and the other Orders of dismissal, it will be subject to dismissal without further leave to amend.

  I. Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A

  Under the provisions of 28 U.S.C. §§ 1915A and 1915(e)(2), the Court is obligated to review complaints filed by all persons "incarcerated or detained in any facility who is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." 28 U.S.C. §§ 1915A & 1915(e)(2). The Court must sua sponte dismiss such complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).

  "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (§ 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)."). However, while liberal construction is "particularly important in civil rights cases," Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the Court may not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Leave to amend should be granted, however, unless "the pleading could not possibly be cured by the allegation of other facts" and if it appears "at all possible that the plaintiff can correct the defect." Lopez, 203 F.3d at 1130-31.

  A. Due Process and Access to Courts Claims

  In his original Complaint, Plaintiff claimed that Defendants Bourland, Grannis, Ochoa and Ryan violated his Fourteenth Amendment due process rights by "intentionally allowing unreasonable delays" of inmate grievances. (Compl. at 4.) Plaintiff alleged that the grievance procedures at Calipatria denied him "meaningful court access" due to the unreasonable delays and failure to properly address or identify issues, which in turn hampered his ability to properly exhaust issues before presenting them to the courts. (Id.)

  The Court informed Plaintiff that to the extent he challenged the procedural adequacy of CDC inmate grievance procedures, his Complaint failed to state a due process claim because the Ninth Circuit has held that prisoners have no protected property interest in an inmate grievance procedure arising directly from the Due Process Clause. (See 5/4/05 Order at 5, citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (finding that the due process clause of the Fourteenth Amendment creates "no legitimate claim of entitlement to a [prison] grievance procedure").) The Court also informed Plaintiff that he had failed to plead facts sufficient to show that any named Calipatria official had deprived him of a protected liberty interest by allegedly failing to respond to his prison grievances in a satisfactory manner because he had not alleged facts sufficient to show that Defendants: (1) restrained his freedom in a manner not expected from his sentence, and (2) "impose[d] atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." (See 5/4/05 Order at 6, citing Sandin v. Conner, 515 U.S. 472, 484 (1995).) The Court also informed Plaintiff that to the extent he was attempting to state a claim for damages regarding the loss of custody credits as a result of the manner in which his inmate grievances were processed, such a claim was not cognizable under Heck v. Humphrey, 512 U.S. 477 (1994) unless and until Plaintiff could allege that the proceedings which resulted in the loss of his custody credits had been declared invalid. (See 5/4/05 Order at 6, n. 3.) Further, the Court informed Plaintiff that to the extent he claims that his inability to effectively use the grievance procedures has denied him access to the courts, his allegations fell short of the pleading standards necessary to state such a claim because he had not alleged facts sufficient to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions of confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a result. (See 5/4/05 Order at 6-7, citing Lewis v. Casey, 518 U.S. 343, 353-55 (1996).) Plaintiff was informed that an "actual injury" is defined as "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim." (Id.)

  In the First Amended Complaint, Plaintiff alleged that the Defendants' actions have "created an overall atmosphere that is antithetical" to his First Amendment rights. (First Amended Complaint "FAC" at 3.) Plaintiff alleged the Defendants avoided dealing with his grievances in an effort to avoid litigation regarding those grievances, have caused an unnaturally long delay "in processing his timely appeal" regarding restoration of his custody credits, which Plaintiff contends is the reason he has not been assigned to a lower custody level prison; he also contended the delay prevents him from succeeding on a Board of Control claim for the destruction of his personal property, and that appeals concerning the conditions of confinement are lost or screened out, and even when granted are not enforced, and that his access to the law library and the contents of the library itself were inadequate. (Id. at 3, 7-9, 11-12.)

  The Court found that Plaintiff had failed to cure the pleading defects with respect to his access to courts claim because he had once again failed to allege actual injury as required by Lewis. (See 8/3/05 Order at 4.) In addition, with respect to the allegation that the grievance which he contends will restore his custody credits and thereby permit him to be housed at a lower-level institution has been unnecessarily delayed, the Court found this claim as alleged was barred by Heck v. Humphrey for the same reasons set forth in the previous Order of dismissal. (Id. at 4-5.) In order for Plaintiff to succeed on a claim for damages based on the failure to restore his custody credits, he must first demonstrate that the judgment which resulted in the forfeiture of his credits has been declared invalid. Heck, 512 U.S. at 486-87. To the extent Plaintiff sought injunctive or declaratory relief which would result in the restoration of his custody credits (see Compl. at 26-27), he was informed that such relief is only available in a habeas corpus action. See Preiser v. Rodriguez, 411 U.S. 475, 488-500 (1973) (challenges to the fact or duration of confinement are appropriately brought by petition for a writ of habeas corpus, but challenges to conditions of confinement are appropriately brought pursuant to § 1983). The Court noted that it would not convert the present action into a habeas petition due to the implications of the abuse of the writ doctrine. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997) (holding that district court should not treat defective section 1983 action seeking restoration of custody credits as a habeas petition). However, because Plaintiff made a cryptic reference to the Defendants' refusal to process his grievance in the face of a court decision which requires restoration of his custody credits (see FAC at 7; Compl. at 7), the Court permitted Plaintiff the opportunity to amend the complaint in an attempt to cure this defect of pleading.

  Plaintiff has once again alleged that he has been denied access to the courts based on the delay in processing his inmate grievances, the failure to process the grievances to their highest levels, and the temporary dispossession of his legal papers and materials. (Second Amended Complaint "SAC" at iii, 16, 20.) Plaintiff now alleges that each and every disciplinary infraction he was charged with which could have resulted in the forfeiture of custody credits has been dismissed and thus presents no Heck problem. (Id. at 6.) However, Plaintiff does not allege an actual injury as required by Lewis, but merely alleges his grievances "might no longer be remediable" due to the Defendants' failure to properly process the appeals, and that civil lawsuits regarding the conditions of his confinement "have been impeded," and that he missed a filing deadline on one occasion. (Id. at iii, v, 6.) For the reasons set forth in the Court's previous Orders of dismissal, Plaintiff has failed to state an access to the courts claim because he has not, and it is now clear he cannot, allege an actual injury as required under Lewis.

  Plaintiff also alleged in the First Amended Complaint that the delays in the inmate grievance procedures and the refusal of the prison to allow the grievances to proceed to the Director's Level of appeal, prevented him from resolving a claim regarding the destruction of his personal property with the Board of Control, which will not process a claim until a decision has been reached at the Director's Level of appeal. (FAC at 8.) The Court informed Plaintiff that the existence of an adequate post-deprivation state remedy for the negligent or unauthorized deprivation, retention or destruction of a prisoner's personal property precludes a federal cause of action under section 1983. Hudson v. Palmer, 468 U.S. 517, 533 (1984). The California Tort Claims Act ("CTCA") provides an adequate post-deprivation state remedy for the random and unauthorized taking of property. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994).

  The Court informed Plaintiff in the previous Order of dismissal that he had not set forth specific factual allegations demonstrating that the delay in processing his grievances or the refusal to issue a Director's Level decision renders the CTCA an inadequate post-deprivation remedy. (See 8/3/05 Order at 5.) Plaintiff was instructed that he must set forth specific allegations regarding the Board of Control's refusal to process claims even after he has brought to their attention the prison's alleged failure to process his inmate grievances, and that his allegation that he had to wait up to a year for a Director's Level decision was inadequate because he did not allege the delay rendered the remedy unavailable. (Id. at 5-6.)

  In the Second Amended Complaint, Plaintiff once again alleges in a conclusory manner that the CTCA is rendered ineffective by the failure to properly or timely process his grievances, resulting in his inability to effectively receive compensation for his personal property taken by the Defendants. (SAC at iii, 15-17, 19-20.) Plaintiff once again fails to allege any specific facts which, if proven true, would demonstrate that the CTCA is an inadequate post-deprivation remedy for the loss or destruction of his personal property.

  Because it is now clear Plaintiff cannot cure the foregoing pleading defects, the Court sua sponte DISMISSES without further leave to amend Plaintiff's due process and access to courts claims regarding the alleged ...


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