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Avery v. Hubbard

June 19, 2009

SHANNON LEWIS AVERY, SR., PLAINTIFF,
v.
SUZAN L. HUBBARD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE ANY CLAIMS UNDER 1983 (Doc. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

I. Screening Order

Plaintiff Shannon Lewis Avery, Sr. ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint onJanuary 7, 2009, in the Northern District of California. (Doc. 1.) Plaintiff's case was transferred to the Eastern District of California on February 23, 2009. (Doc. 6.) Plaintiff's complaint is presently before the Court for screening.

A. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to § 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard... applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

B. Summary of Plaintiff's Complaint

Plaintiff is currently a state prisoner at Avenal State Prison ("ASP") in Avenal, California, where the acts he complains of occurred. Plaintiff names the following defendants: Suzan L. Hubbard, Director of the California Department of Corrections and Rehabilitation ("CDCR"); James D. Hartley, Warden of ASP; M. Cruz, mailroom sergeant at ASP; Lieutenant John Doe, supervisor of mailroom sergeant at ASP; J. Montana-Hiller, mailroom sergeant at ASP; Schreiber, Warden's designee staff in the mailroom; and R. Gonzales, correctional officer at ASP.

Plaintiff alleges the following. On December 23, 2007, Plaintiff mailed ten legal/confidential letters. On December 24, 2007, Plaintiff received five of those letters back, unsent. Defendant R. Gonzales was the officer who processed Plaintiff's mail. The letters were returned for non-compliance with title 15 section 3141 of the California Code of Regulations. (Doc. 1, pp. 8-9, ¶ 11-13.)

The letters to these five organizations were returned: Prison Book Project; Southern Poverty Law Center; Human Rights Watch Prison Project; Books Through Bars; and Fortune News. (Doc. 1, pp. 17-18, ¶¶ 49-53.) Plaintiff alleges that prison officials have interfered with his constitutional rights to communicate with legal counsel and the media. Plaintiff also alleges other instances in which defendants interfered with Plaintiff receiving and sending mail.

Plaintiff claims interference with his right to access the courts, interference with his personal mail and retaliation.

Plaintiff seeks as relief money damages, declaratory relief, and injunctive relief.

C. Plaintiff's Claims

Plaintiff alleges several violations of the First Amendment. The Court will examine each claim as set forth below.

1. Access to the Courts

Plaintiff alleges that his access to the courts was denied because Plaintiff's mail to a legal organization was denied and his access to the law library was not meaningful.

Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). The right is limited to direct criminal appeals, habeas petitions, and civil rights actions. Id. at 354. Claims for denial of access to the courts may arise from the frustration or hindrance of "a litigating opportunity yet to be gained" (forward-looking access claim) or from the loss of a meritorious suit that cannot now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). For backward-looking claims, plaintiff "must show: 1) the loss of a 'non-frivolous' or 'arguable' underlying claim; 2) the official acts frustrating the ...


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