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Krzysztof F. Wolinski v. Mike D. Mcdonald

February 23, 2012

KRZYSZTOF F. WOLINSKI,
PLAINTIFF,
v.
MIKE D. MCDONALD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's amended complaint (Doc. 31).

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that complaints contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts by specific defendants which support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is impossible for the court to conduct the screening required by law when the allegations are vague and conclusory.

I. PLAINTIFF'S ALLEGATIONS

Plaintiff's original complaint was dismissed with leave to amend for failure to state a claim and for plaintiff's attempt to include too many unrelated claims and defendants in one action. In his amended complaint, plaintiff has eliminated most of the claims unrelated to his claims of assault by several officers. As set forth in a separate order, the court has authorized service for those officers involved in the assaults plaintiff alleges. However, plaintiff also attempts a few other claims, for which he fails to state a claim. In addition, plaintiff continues to name defendants in his amended complaint for which he makes no allegations, nor does it appear possible to do so.

Aside from the assaults he alleges by defendants Young, Silva, Shuford, Fish, and Hougland, plaintiff claims defendant Miller refused to make copies of a letter reporting his assault, and defendant Wheeler attempted to force plaintiff to abandon his allegations during the investigation into his alleged assault. Plaintiff also continues to identify several defendants against whom he asserts no factual allegations, including McDonald, Kraft, Perry and Harrison. He has eliminated Miranda, Vegas, Barton, Shiplet, Kimball, and Clark as defendants in his amended complaint, and those defendants should be terminated from this case.

II. DISCUSSION

The court dismissed plaintiff's original complaint with leave to amend. In so doing, the court took the precaution of educating plaintiff as to what was necessary in order to state a claim for the allegations the court could discern from his original complaint. The court explained to plaintiff the necessity of alleging specific factual allegations as to each defendant, and what was necessary to state a claim for violation of his due process rights, First Amendment right to access the courts, and Eighth Amendment rights related to the use of force, safety and medical care. Plaintiff's complaint sufficiently states a claim against several defendants for violating his Eighth Amendment rights based on his assault allegations. However, he fails to state a claim as for any of his other allegations.

Plaintiff has eliminated his unrelated allegations regarding the conditions of the cells and due process violations related to disciplinary hearings. As for his claims regarding right of access to the court against defendant Miller, plaintiff alleges that he attempted to make copies of a letter requesting an investigation and assistance after his sexual assault, but defendant Miller "suppressed it right away, all plaintiffs documents including court papers, and transfer them to program office facility "B", immediately!" (Am. Compl., Doc. 31, at 7).

Plaintiff was previously informed:

Prisoners have a First Amendment right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) (discussing the right in the context of prison grievance procedures). This right includes petitioning the government through the prison grievance process. See id. Prison officials are required 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, 430 U.S. at 828. The right of access to the courts, however, only requires that prisoners have the capability of bringing challenges to sentences or conditions of confinement. See Lewis, 518 U.S. at 356-57. Moreover, the right is limited to non-frivolous criminal appeals, habeas corpus actions, and § 1983 suits. See id. at 353 n.3 & 354-55. Therefore, the right of access to the courts is only a right to present these kinds of claims to the court, and not a right to discover claims or to litigate them effectively once filed. See id. at 354-55.

As a jurisdictional requirement flowing from the standing doctrine, the prisoner must allege an actual injury. See id. at 349. "Actual injury" is prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or present a non-frivolous claim. See id.; see also Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir. 2007). Delays in providing legal materials or assistance which result in prejudice are "not of constitutional significance" if the delay is reasonably related to legitimate penological purposes. Lewis, 518 U.S. at 362. (Order, Doc. 28, at 6-7).

Plaintiff alleges defendant Miller refused to make copies of a letter requesting assistance. He does not, however, claim that this letter was in any way intended to access the courts. While plaintiff may have needed assistance, and may have been attempting to obtain that assistance, he does not allege that it was an attempt to file an inmate grievance or to somehow access the courts. In addition, plaintiff fails to allege any actual injury associated with defendant Miller's refusal to make copies of the letter or the apparent confiscation of his court documents. Actual injury in this circumstance is a legal injury, not physical. Plaintiff was informed of the necessity of alleging an actual injury. It appears that he is either unable or unwilling to allege facts sufficient to state a denial of access to the courts claim, and that claim and defendant Miller should be dismissed from this action.

To the extent plaintiff attempts to state a claim against defendants Perry and Harrison, his amended complaint is insufficient. Plaintiff states that the day after the library incident, he was summoned to the program office where he was assaulted by defendants Hougland, Fish and Silva for a second time. He was then moved to defendant Perry's office. Defendant Perry then left his office, presumably leaving defendant in the care of defendants Hougland and Fish, who continued their "investigation by use of severe pain". Defendant Perry then returned to obtain plaintiff's statement on camera. These are the only allegations against defendant Perry. Plaintiff does not allege defendant Perry was personally involved in any assault against him, nor that he knew of and disregarded the ...


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