The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
(1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; (2) DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2); and(3) DENYING MOTION TO TRANSFER COURT CASE FILE AND MOTION TO AMEND CAPTION/SUBSTITUTE PARTIES AS MOOT [Doc. Nos. 2, 4, 9]
On August 31, 2010, Plaintiff, proceeding pro se, filed a civil action pursuant to 42 U.S.C. § 1983, along with a Motion to Proceed In Forma Pauperis ("IFP). At the time Plaintiff initially filed this action he was not incarcerated. Before the Court could rule on Plaintiff's IFP Motion and screen his Complaint, Plaintiff filed a First Amended Complaint. On November 11, 2010, Plaintiff filed a "Notice of Change of Address" which indicates that he is currently incarcerated at the Richard J. Donovan Correctional Facility ("RJD"). In addition, Plaintiff has filed a "Motion to Transfer Court Case File," along with a "Motion to Amend Caption and Motion to Substitute Parties." [Doc. Nos. 4, 9].
II. Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus must pay a filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Because it appears that Plaintiff was not incarcerated at the time he filed this action, he is not subject to the filing fee garnishment found in 28 U.S.C. § 1915(b)(2).
The Court takes judicial notice that Plaintiff has previously filed this identical action in Woodall v. Schwarzenegger, et al., S.D. Cal. Civil Case No. 10cv1218 MMA (CAB). Because District Judge Anello found that Plaintiff was incarcerated at the time he filed that first action, and he had three "strikes" pursuant to 28 U.S.C. § 1915(g), Plaintiff's previous Motion to Proceed IFP was denied by District Judge Anello pursuant to 28 U.S.C. § 1915(g). Plaintiff filed a Notice of Appeal in that action which was later dismissed because Plaintiff failed to perfect the appeal. Plaintiff has now brought the identical claim in this action but he is not subject to 28 U.S.C. § 1915(g) as he was not incarcerated at the time he brought the Complaint that is currently before this Court.
Accordingly, the Court has reviewed Plaintiff's affidavit of assets, just as it would for any other non-prisoner litigant seeking IFP status, see S.D. CAL. CIVLR 3.2(d), finds it is sufficient to show that Plaintiff is unable to pay the fees or post securities required to maintain this action, and hereby GRANTS Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2].
III. Motion to Transfer Court Case File
As stated above, Plaintiff first filed this identical action in Woodall v. Schwarzenegger, et al., S.D. Cal. Civil Case No. 10cv1218 MMA (CAB). Plaintiff is now seeking an Order from this Court to remove the exhibits that were attached to his Complaint in Woodall v. Schwarzenegger, et al., S.D. Cal. Civil Case No. 10cv1218 MMA (CAB) and attach them to the Complaint filed in this action. However, on September 29, 2010, Plaintiff filed a two hundred forty seven (247) page First Amended Complaint, along with over fourteen hundred (1400) pages of exhibits which is the same amount of Exhibits filed in the previous action. Thus, because it appears Plaintiff's request is now moot with the filing of his First Amended Complaint and the attached exhibits, Plaintiff's "Motion to Transfer Court Case File" is DENIED as moot.
IV. Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2)
Any complaint filed by a person proceeding IFP is subject to sua sponte dismissal by the Court to the extent it contains claims which are "frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant immune from such relief."
28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.").
In this matter, as stated above, Plaintiff has filed a two hundred and forty seven page (247) First Amended Complaint ("FAC"), named thirty eight (38) Defendants and attached more than fourteen hundred (1400) pages of exhibits. Thus, the Court finds that Plaintiff's First Amended Complaint fails to comply with Rule 8. Specifically, Rule 8 provides that in order to state a claim for relief in a pleading it must contain "a short and plain statement of the grounds for the court's jurisdiction" and "a short and plain statement of the claim showing that the pleader is entitled to relief." FED.R.CIV.P. 8(a)(1) & (2). If Plaintiff chooses to file an Amended Complaint, he must comply with Rule 8. Because Plaintiff is now currently incarcerated, he is further cautioned that he must also comply with Local Rule 8.2 which provides, in part, that prisoners must use the Court's form complaints and any additional pages are "not to exceed fifteen (15) in number." S.D. CIVLR 8.2.
B. Counts 1 - 7 Access to Courts and Equal Protection Claims In his First Amended Complaint, Plaintiff alleges that he was in and out of prison over a period of time due to parole violations. (See FAC at 13-18.) During this time, Plaintiff alleges that he "met his partner Jose Camargo who is a transgender who also goes by the name of Jessica Natalie Woodall." (Id. at 13.) Plaintiff and his partner were housed on the "Special Needs Yard" while incarcerated at RJD. (Id.) Later, while they were both on release from prison they "had a son, Jacob Matteo Woodall, by a surrogate mother in Tijuana, Mexico." (Id. at 14.) As a result, Plaintiff and his partner "agreed they needed to create a legal domestic partnership under California Code Section 297." (Id.) Plaintiff claims that they began the process but have not been able to complete it due to Defendant Arnold Schwarzenegger, former Governor for the State of California, and Defendant Debra Bowen, Secretary of the State of California, rejecting their application for failing to get notarized signatures and pay the filing fee. (Id. at 17.) Plaintiff claims that he does not have access to a Notary Public in prison and he requested a waiver of the fees due to his indigency status but that was rejected. (Id.)
First, Plaintiff alleges that prison officials have violated his access to the courts by failing to provide him with a notary public. (Id. at 18-19.) Prisoners do "have a constitutional right to petition the government for redress of their grievances, which includes a reasonable right of access to the courts." O'Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996). In Bounds, 430 U.S. at 817, the Supreme Court held that "the 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 who are trained in the law." Bounds v. Smith, 430 U.S. 817, 828 (1977). To establish a violation of the right of access to the courts, however, 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. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). 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.
Here, Plaintiff has failed to alleged any actions with any particularity that have precluded his pursuit of a non-frivolous direct or collateral attack upon either his criminal conviction or sentence or the conditions of his current confinement. See Lewis, 518 U.S. at 355; see also Christopher v. Harbury, 536 U.S. 403, 415 (2002) (the non-frivolous nature of the "underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint, just as much as allegations must describe the official acts frustrating the litigation."). Moreover, Plaintiff has not alleged facts sufficient to show that he has been actually injured by any specific defendant's actions. Lewis, 518 U.S. at 351. Here, Plaintiff's claims that prison officials refused to provide him with access to a Notary Public does not involve the conditions of his confinement or an attack on his criminal conviction. Moreover, it is far from clear how the alleged denial of the request for a fee waiver to obtain a domestic partnership deprives Plaintiff of access to the courts.
Therefore, Plaintiff's access to courts claims relating to his domestic partnership must be dismissed for failing to state a claim upon which section 1983 relief can be granted.
While not entirely clear, it appears that Plaintiff may be attempting to state an equal protection claim against the Secretary of State Debra Bowen and former California State Governor for failing to waive the filing fee for a domestic partnership and requiring a notarized signature for an application. Because it is not clear that Plaintiff is alleging such a claim, the Court will provide Plaintiff the opportunity to file a Second Amended Complaint which clearly sets forth the factual basis for this claim and the named Defendants that he seeks to hold liable for the alleged violations.
Plaintiff then submits a lengthy description of his attempts to seek judicial review of his probation revocation. In sum, Plaintiff claims that prison officials at RJD destroyed transcripts that would prove a key element of his argument that his "federal constitutional right to due process was violated when his probation was subsequently reinstated and extended without a formal revocation hearing." (See FAC at 33.) However, these claims are premature. Plaintiff acknowledges that this issue is currently on appeal and in the briefing stages before the Ninth Circuit Court of Appeal. See Woodall v. Gene Beauchamp, et al., No. 09-55997 (9th Cir. filed Sept. 10, 2010). Therefore, Plaintiff cannot yet show an "actual injury" with respect to the alleged destruction of his legal materials until the matter has been decided by the Ninth Circuit Court of Appeals. At this stage, Plaintiff has not alleged any actions with any particularity that have precluded his pursuit of a non-frivolous direct or collateral attack upon his criminal conviction. See Lewis, 518 U.S. at 355. Thus, Plaintiff's claims of denial of access to the courts based on the alleged destruction of his legal materials is denied, without prejudice, for failing to state a claim upon which § 1983 relief may be granted.
In yet another variation of Plaintiff's access to courts claim, he alleges that he filed a civil action against Defendants based on the same set of access to courts claims in the San Diego Superior Court. (See FAC at 36.) Plaintiff claims that prison officials failed to provide him with sufficient time in the prison law library and failed to make him available for the telephonic hearing on Defendants' demurrer. (Id. at 36-41.) As a result, the Superior Court Judge "sustained prison officials demurrer without leave to amend." (Id. at 41.)
These claims brought in the State Court action are identical to the claims he brings here, that is that prison officials destroyed his property and caused him to be denied access to the courts. In order to state an access to courts claim, Plaintiff must show the non-frivolous nature of the underlying cause of action, whether anticipated or lost, as an element that must be described in the complaint. Christopher, 536 U.S. at 415. Plaintiff fails to provide any allegations that would demonstrate that the judgment entered in the San Diego Superior Court matter would have been different had Plaintiff been able to spend more time in preparing his opposition to Defendants' demurrer. In fact, it is quite the opposite, it appears that the reasoning of the San Diego Superior Court Judge in sustaining the Defendants' demurrer was based on the same reasoning as this Court provides above. As stated above, Plaintiff's ...