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Larry Francis Durden v. Cdcr

December 8, 2011

LARRY FRANCIS DURDEN,
PLAINTIFF,
v.
CDCR, ET AL.,
DEFENDANTS.



SCREENING ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM THIRTY-DAY DEADLINE Doc. 1

Screening Order

I. Procedural History

On June 6, 2011, Plaintiff Larry Francis, a state prisoner proceeding pro se and in forma pauperis, filed a complaint pursuant to 42 U.S.C. § 1983, naming defendants from California Correctional Institution in Tehachapi, California.*fn1 See Pl. Compl. Doc. 1. On July 1, 2011, Plaintiff filed an "Affidavit / Second Extension to First Complaint." Doc. 8. On July 5, 2011, Plaintiff filed a document entitled "Plaintiff States a Claim." Doc. 10.*fn2 On November 18, 2011 and November 23, 2011, Plaintiff filed documents entitled "Affidavits." Docs. 32, 34, & 36. These various filings to supplement Plaintiff's complaint violate Local Rule 220. In the interest of judicial economy, the Court will consider Plaintiff's supplemental pleadings but solely in this first screening.

II. 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).

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, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

Under § 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.

III. Plaintiff's Complaint

A. Allegations of Impeding U.S. Mail

While much of Plaintiff's initial complaint is illegible, Plaintiff does make allegations of impeding U.S. Mail and demands that Defendants take a lie detector test. Pl. Compl. at 4, Doc. 1. Plaintiff states that Defendant Staton lied when he said he mailed Plaintiff's letters because he was walking back from the trash receptacle. Id. On July 1, 2011, Plaintiff filed an Affidavit / Second Extension to First Complaint, again alleging impeding U.S. Mail and demanding a lie detector test. Pl. Ext. Compl. at 1, Doc. 8. Plaintiff further alleges that C.O. Jordan and C.O. Medina stopped the passage of U.S. Mail. Id. C.O. Jordan and C.O. Medina would take Plaintiff's U.S. Mail from the outer cell door and slide it under the cell door to enable them both from participating in the delivery of outside mail. Id. Plaintiff yelled at Defendants that Plaintiff had a deadline to meet. Id. Defendants would say they did not care that Plaintiff has a deadline to the U.S. Courts, and they would leave, laughing at Plaintiff. Id.

Prisoners have "a First Amendment right to send and receive mail." Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). However, the right is not absolute and may be infringed upon by prison officials under certain circumstances. Witherow, 52 F.3d at 265 ; Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008) (per curiam) (outgoing mail); Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (incoming mail). Plaintiff has not alleged any facts supporting a claim that the Defendants named in this action violated his rights under the First Amendment by impermissibly interfering with his incoming or outgoing mail. Plaintiff simply alleges that Defendant was walking from the direction of the trash receptacle, and that Defendants slid his mail under his cell door. Accordingly, the Court finds that Plaintiff fails to state a cognizable claim for relief under § 1983 based upon interference with his First Amendment right to send and receive mail.

B. Allegations of Denial of Access to Courts

On July 5, 2011, Plaintiff filed a document entitled "Plaintiff States a Claim." Doc. 10. Plaintiff again alleged impeding the passage of U.S. Mail. Id. Plaintiff further alleged that due to Defendants actions in impeding his mail, he was unsuccessful in his court case, civil action number 2:11-cv-01512-DAD (PC). Id. Plaintiff alleged a conspiracy to impede his U.S. Mail. Id. Plaintiff said that Defendant Staton ran out of the building with Plaintiff's mail and returned thirty seconds later. Id. Plaintiff states that it would take fifteen minutes to mail Plaintiff's letters. Id. Plaintiff alleged that his court case was dismissed because of Defendants' interference with his U.S. Mail. Id.

Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011). The right of access to the courts is merely the right to bring to court a grievance the inmate wishes to present, and is limited to direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at 354. To bring a claim, a prisoner must have suffered an actual injury by being shut out of court. ...


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