The opinion of the court was delivered by: Robert H. Whaley United States District Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO RENEW
Plaintiff Rod Ireland is proceeding pro se. He is an inmate at Solano County Jail, Fairfield, California.*fn1 On November 4, 2008, Plaintiff filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging insufficiency of legal assistance.
Pursuant to 28 U.S.C. § 1915(A), this court must conduct a preliminary review of the complaint to identify any cognizable claims, and to dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. § 1915(A)(b)(1),(2).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a violation of a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law.
In his Complaint, Plaintiff alleges that the Solano County Jail has no law library for pro pers to research the law and has no paralegals with which to consult. He alleges that he has been denied access to the court because his written instruments have been rejected, denied, and dismissed.
"[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817, 828 (1977). In Lewis v. Casey, the Supreme Court noted that Bounds did not create an abstract, freestanding right to a law library or legal assistance. 518 U.S. 343, 351 (1996). Thus, an inmate cannot establish relevant actual injury by alleging that his prison's law library or legal assistance program is subpar in some theoretical sense. Id. Rather, to properly plead a violation of the right to access to the courts, a prisoner must allege facts sufficient to show that: (1) a non-frivolous 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. Id. at 353-55. 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. at 348.
In his complaint, Plaintiff refers to CV-08-2102-DAD and implies that his written instruments were denied and dismissed because the forms provided at the jail were incomplete or outdated. In that case, Plaintiff was provided forms to use from the Court. Plaintiff's Second Amended Complaint was dismissed--not because he used an incorrect or outdated form--rather, it was dismissed for failure to state a claim.*fn2 Plaintiff has not alleged sufficient facts to support a claim that he suffered actual injury. Consequently, Plaintiff has not alleged sufficient facts to state a claim for denial of access to the Courts.
District courts must afford pro se litigants the opportunity to amend to correct any deficiency in their complaints. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Accordingly, the Court grants plaintiff leave to file an amended complaint within thirty (30) days of the date this order is filed, to address the deficiencies set forth above. In the alternative, within thirty (30) days of the date this order is filed, plaintiff may file a notice with the court stating that he intends to proceed with the cognizable claims in the original complaint. Because an amended complaint completely replaces the original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992).
Accordingly, IT IS HEREBY ORDERED:
1. Plaintiff's claims against Rod Marsh and Gary Stanton are DISMISSED, with leave to renew.
2. Plaintiff shall file an amended complaint within thirty (30) days from the date this order is filed. In the alternative, within thirty (30) days from the date this order is filed, Plaintiff may file a notice with the court stating that he intends to proceed with the cognizable claims in the original complaint. Failure to do so could result in the dismissal of this action.
An amended complaint must include the caption and civil case number used in this order (CV 08-2628-RHW ) and the words "AMENDED COMPLAINT" on the first page. Because an amended complaint completely replaces the original complaint, Plaintiff must include in it all the claims he wishes to present. See Ferdik, 963 F.2d at 1262. Plaintiff may not incorporate material from the original complaint, such as supporting documentation or exhibits, by reference. Plaintiff must include all of his claims, including the cognizable claims set forth above, in the amended complaint. Failure to file an amended complaint or file a notice with the court in compliance with this order within the designated time will result in the court proceeding with the cognizable claims in the original complaint as stated in this order.
Plaintiff is advised that an amended complaint supersedes the original complaint. "[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged in the amended complaint." London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.1981). Defendants not named in ...