S E COND A ME NDED COMPL A INT DISMISSED WITH LEAVE TO AMEND (ECF No. 34) THIRD AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Plaintiff Francisco J. Gil ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action May 26, 2009 and he consented to Magistrate Judge jurisdiction on June 5, 2009. (ECF Nos. 1 & 5.) Plaintiff then filed a First Amended Complaint on December 7, 2009. (ECF No. 6.) This First Amended Complaint was dismissed with leave to amend on December 20, 2010 for failure to state a claim upon which relief could be granted. (ECF No. 19.) Plaintiff filed his Second Amended Complaint on April 7, 2011. (ECF No. 35.)
The Second Amended Complaint is now before the Court for screening.
For the reasons set forth below, the Court finds that Plaintiff's Second Amended Complaint fails to state a claim upon which relief may be granted.
II. SCREENING REQUIREMENTS
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).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
III. SUMMARY OF COMPLAINT
Plaintiff brings this action for violations of his Fourteenth, Eighth, and First Amendments and a conspiracy claim. Plaintiff names the following individuals as Defendants: James A Yates, J. M. Woodend, MC Davis, H. Martinez, R. Shannon, C. Hudson, R. Galaviz, N. Grannis, and Hendricks.
Plaintiff alleges the following: On January 24, 2007, Plaintiff received a Rule Violation Report (RVR) for unauthorized possession of a controlled medication. Plaintiff was charged with unauthorized possession of a controlled substance at the hearing for the RVR which was held by Defendant Woodend. Despite the pharmacist's testimony that the substance was in fact a controlled medication, Defendant Woodend found Plaintiff guilty of possession of a controlled substance and sentenced him to an additional four months in prison. The Warden and Chief Appeals Coordinator upheld this ruling and sentence.
On February 20, 2009, Plaintiff was mistakenly shot by a correctional officer during a fight between two inmates. Plaintiff's appeals were refused. As a result of the unlawful disciplinary action, Plaintiff spent an additional six months in prison.
Plaintiff seeks monetary damages.
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted).
Plaintiff appears to be alleging that he was denied access to the courts by Defendants through their mishandling of his appeals.
Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). However, 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). Forward-looking claims allege "that systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits at the present time." Christopher, 536 U.S. at 413. In these cases that have yet to be litigated, "the justification for recognizing that [forward-looking] claim, is to place the plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been removed." Id. As part of the requirement to plead an injury, a plaintiff must allege that "a non-frivolous legal claim had been frustrated or was being impeded." Lewis, 518 U.S. at 353; see also Christopher, 536 U.S. at 415. Simply stating that a claim is "non-frivolous" due to the action of a government official will not satisfy the actual injury requirement. Christopher, 536 U.S. at 415. Rather, the non-frivolous "underlying cause of action and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice to a defendant." Id. at 416. The plaintiff must describe this "predicate claim . . . well enough to apply the 'non-frivolous' test and to show that the 'arguable' nature of the underlying claim is more than hope." Id. The complaint should "state the underlying claim in accordance with Federal Rule of Civil Procedure 8(a) just as if it were being independently pursued, and a like plain ...