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Walter Shane Langston v. Warden James Hartley

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 29, 2012

WALTER SHANE LANGSTON, PLAINTIFF,
v.
WARDEN JAMES HARTLEY, SGT. CRUZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Plaintiff is a state prisoner proceeding without counsel and in forma pauperis.

Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).

Pursuant to court order, plaintiff's amended complaint is now before the court. As set forth more fully below, plaintiff's amended complaint is dismissed, and plaintiff is granted leave to file a second amended complaint.

II. Screening Standards

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).

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).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

III. Pleading Defects

Rather than use the court's form complaint, as plaintiff did in filing his original complaint, plaintiff handwrote the amended complaint. This resulted in a failure to include information critical to plaintiff's case.

First, plaintiff's filing begins with three pages initially labeled "Amendment Complaint," but without a caption. (Dkt. No. 15 at 1-3.) The third page is followed by what appears to be the first page of an amended complaint, with a caption, entitled "Amendment." (Dkt. No. 15 at 4.) Second, this filing is confusing because plaintiff used inconsistent page numbering. Plaintiff began paginating anew on the page containing a caption, but after the page marked "(5) five," plaintiff uses page "(1) one" on the following page. In addition, it appears plaintiff intended to include a page six, because the last sentence on page five is incomplete, and does not continue on the following page marked "(1) one."

Third, the amended complaint does not include a section identifying individuals as defendants. Page four identifies Warden James Hartley as a defendant in the caption, followed by "et al.," which suggests plaintiff intended to name other individuals as defendants. Liberally construed, it appears plaintiff intended to name Warden Hartley and Sgt. Cruz as defendants because these are the only two individuals identified by name in the filing. But the plural reference in the caption makes it difficult to confirm that plaintiff intended to sue Hartley and Cruz. Plaintiff is advised that he must clearly identify the individuals he intends to name as defendants.

Fourth, plaintiff does not articulate what relief he seeks; in the original complaint, plaintiff sought compensatory and punitive damages. (Dkt. No. 1 at 3.) As set forth more fully below, plaintiff is granted leave to file a second amended complaint. While plaintiff may append handwritten facts and claims to the court's complaint form, plaintiff should use the court's complaint form to ensure all necessary information is clearly provided.

IV. Plaintiff's Claims

A. Interference with Pending Criminal Proceedings Plaintiff renews his claim that defendants impeded plaintiff's access to the courts by failing to ensure plaintiff's legal materials were forwarded to plaintiff at the Sacramento County Jail after plaintiff's conviction was reversed, thus depriving plaintiff of his right of access to the courts, and to represent himself in criminal proceedings, in violation of the Sixth Amendment.

In People v. Langston, 2009 WL 245025 (Cal. App. 3 Dist. Aug. 10, 2009), the Court of Appeal found that plaintiff's 2008 criminal conviction must be reversed, and plaintiff be allowed to withdraw his plea inasmuch as the trial court promised plaintiff he could appeal issues that were not cognizable on appeal. Id., at *1 (Sacramento County Superior Court Case No. 07F09116).

At the time plaintiff's conviction was reversed, plaintiff was incarcerated at Avenal State Prison. In the amended complaint, plaintiff alleges the following. On November 13, 2009, defendant Hartley was notified by the Sacramento Superior Court that on November 20, 2009, the Sacramento County Sheriff's Department would transport plaintiff to the Sacramento County Jail for plaintiff's court proceedings. On November 19, 2009, plaintiff was directed by Sgt. Cruz to bring all of plaintiff's property to receiving and release as plaintiff was being transferred to the Sacramento County Jail. Plaintiff reported with his property to receiving and release on November 19, 2009, but was informed that he would be transferred on November 20, 2009. Plaintiff returned to receiving and release on November 20, 2009, apparently having left his property behind the day before. When plaintiff arrived, Sgt. Cruz informed plaintiff that his property was packed and taped, and would be stored until plaintiff returned from court.

Plaintiff objected, noting that plaintiff's conviction had been reversed, and that plaintiff was now a pretrial detainee transferring into the custody of the Sacramento County Jail. Sgt. Cruz countered that plaintiff was only "out to court," and that plaintiff was confused about not being a ward of the Department of Corrections. Plaintiff explained his need for his legal materials due to his pending civil cases, as well as for defending himself in the re-opened criminal case. Despite plaintiff's protestations, plaintiff was transferred without his legal materials.

Plaintiff also appealed to the Sacramento County transport officer, who attempted, unsuccessfully, to retrieve plaintiff's legal materials from Avenal receiving and release. The officer suggested plaintiff ask the court to appoint counsel to assist in obtaining return of the legal materials.

On November 23, 2009, plaintiff informed the Sacramento County Superior Court judge that plaintiff's legal materials were withheld by Avenal personnel, and that without them, plaintiff could not mount an effective defense. On this ground, the superior court allowed plaintiff to withdraw his Faretta*fn1 motion, and appointed counsel. On November 30, 2009, plaintiff advised appointed defense counsel that plaintiff intended to represent himself in the criminal proceedings, but that "until he received his legal materials, plaintiff would need counsel's representation [to help obtain] the legal materials from Avenal State Prison." (Dkt. No. 15 at 7.) Plaintiff alleges defense counsel wrote a letter to defendant Hartley, instructing him to send plaintiff's legal materials to plaintiff in the Sacramento County Jail, or to defense counsel's law office. However, plaintiff did not receive his legal materials, and defendant Hartley did not comply with defense counsel's request. Plaintiff provides a list of documents he needed from his legal materials to defend himself in the criminal prosecution, which included copies of the preliminary hearing transcript from the first hearing, and research he had performed to support a motion to suppress evidence in the pending criminal proceedings. (Dkt. No. 15 at 2- 3.)

It appears that following trial of the charges in 07F09116 in March and April of 2010, plaintiff was sentenced on May 21, 2010.*fn2 Plaintiff was returned to Avenal State Prison on June 10, 2010. (Dkt. No. 1 at 7.)

i. Legal Standards

Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). In Sands v. Lewis, 886 F.2d 1166 (1989), the Ninth Circuit divided such cases into two categories: (1) Those which assert inadequate law libraries or alternative sources of legal knowledge sufficient to prepare a suit, and (2) all others (id. at 1171), including interference claims. As to the second category, the court required proof of "actual injury" to state a claim. Id. The court did not require actual injury for the first category, id., but that part of the holding was overruled by Lewis v. Casey, 518 U.S. 343, 350-55 (1996).*fn3 In short, whether a prisoner's claim is that a prison law library is inadequate, or that his access to the law library is inadequate, or that official action somehow blocked or interfered with his access to the court, he must allege "actual injury."

In the interference line of cases, the Supreme Court has "held that the First Amendment right to petition the government includes the right to file other civil actions in court that have a reasonable basis in law or fact." Snyder [v. Nolen, 380 F.3d 279, 290 (7th Cir. 2004)] [internal citations omitted]. This right does not require prison officials to provide affirmative assistance in the preparation of legal papers, but rather forbids states from "erect[ing] barriers that impede the right of access of incarcerated persons." John L. [v. Adams, 969 F.2d 228, 235 (6th Cir. 1992); Snyder, 380 F.3d at 291 ("The right of access to the courts is the right of an individual, whether free or incarcerated, to obtain access to the courts without undue interference"). Thus, aside from their affirmative right to the tools necessary to challenge their sentences or conditions of confinement, prisoners also have a right, protected by the First Amendment right to petition and the Fourteenth Amendment right to substantive due process, "to pursue legal redress for claims that have a reasonable basis in law or fact." Snyder, 380 F.3d at 291 (citing Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993)).

We have recognized that prisoners' First and Fourteenth

Amendment rights to access the courts without undue interference extend beyond the pleading stages. See, e.g., Vigliotto v. Terry, 873 F.2d 1201, 1202 (9th Cir. 1989) ("a defendant is deprived of due process if prison authorities confiscate the transcript of his state court conviction before appeal"); DeWitt v. Pail, 366 F.2d 682, 685 (9th Cir. 1966) ("When the efforts of a state prisoner to obtain an available appellate review of his conviction are frustrated by the action of penal officials, there has been a violation of the Due Process Clause of the Fourteenth Amendment"). Indeed, before the Supreme Court's decision in Bounds, when the right of access to the courts was understood only to guarantee prisoners a right to be free from interference, we held that the right to access the courts included "the opportunity to prepare, serve and file whatever pleadings or other documents are necessary or appropriate in order to commence or prosecute court proceedings affecting one's personal liberty, or to assert and sustain a defense therein, and to send and receive communications to and from judges, courts and lawyers concerning such matters." Hatfield v. Bailleaux, 290 F.2d 632, 637 (9th Cir. 1961) (emphasis added).

Silva v. DiVittorio, 658 F.3d 1090, 1102-03 (9th Cir. 2011).*fn4 Thus, "prisoners have a right under the First and Fourteenth Amendments to litigate claims challenging their sentences or the conditions of their confinement to conclusion without active interference by prison officials." Id.

at 1103.

ii. Screening

Here, plaintiff alleges that defendants' refusal or failure to transfer plaintiff's legal materials from Avenal State Prison to plaintiff at the Sacramento County Jail interfered with plaintiff's access to the court, as well as with his ability to represent himself in the pending criminal prosecution in violation of the Sixth Amendment. Thus, plaintiff may be able to state a cognizable claim for violation of his right to access to the court and the Sixth Amendment.

However, in Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court held:

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

Id., at 486-87. In Heck, the plaintiff did not allege he was denied access to the courts but rather claimed that state prosecutors and police had destroyed evidence. Id. at 478-79. Plaintiff relies on Banks v. Sheahan, 914 F. Supp. 231 (N.D. Ill. 1995). Although the court in Banks did not find the claim Heck-barred, the court found that the prisoner did not suffer an actual detriment or injury, and that the prisoner had adequate access to the courts through appointed counsel. Id. at 234-36. Moreover, in a subsequent case, the Seventh Circuit discussed the interplay between Heck and access to court claims, and found that if the injury in question is losing the underlying case, then Heck applies. Nance v. Vieregge, 147 F.3d 589, 591 (7th Cir. 1998); but see Lueck v. Wathen, 262 F.Supp.2d 690');">262 F. Supp. 2d 690 (N.D. Tex. 2003) (not resolving Heck question when officials seized documents that prevented plaintiff from filing a habeas petition). Because Nance was attempting to withdraw his guilty plea, his access to the courts claim necessarily implicated his conviction. Id., 147 F.3d at 51.

Here, plaintiff's factual allegations concerning the legal materials withheld pertain to his efforts to renew a motion to suppress which was apparently denied in the prior criminal proceeding. These allegations suggest that a ruling on plaintiff's claim would implicate plaintiff's subsequent criminal conviction. See Valdez v. Rosenbaum, 302 F.3d 1039 (9th Cir. 2002) (restricted telephone access to counsel in violation of Sixth Amendment necessarily implicated subsequent conviction); Jenkins v. Bartley, 2008 WL 4058088 (E.D. Cal. Aug. 28, 2008) (prisoner alleged inability to pursue habeas actions related to the then-pending criminal proceedings or to assert right to proceed pro se; court held that finding prisoner prevented from asserting Faretta right to self-representation or to challenge some phase of the criminal prosecution would necessarily implicate validity of underlying conviction.)*fn5 Thus, depending on plaintiff's factual allegations supporting his specific injury, this claim may be barred by Heck.

Plaintiff is granted leave to file a second amended complaint in order to clearly allege the actual injury he claims.

B. Interference with Other Civil Cases

The focus of plaintiff's fourteen page amended complaint is the deprivation allegedly impacting plaintiff's ability to defend himself in the criminal prosecution, as discussed above. However, plaintiff also alleges he was deprived of "his variety of writings, personal records dealing with civil complaints, and writ [of] habeas corpus." (Dkt. No. 15 at 3.)

Specifically, plaintiff states he needed his legal materials for the following three cases: 2:10-cv- 2196 EFB; 2:10-cv-2715; and 2:09-cv-0992 LKK KJM. (Dkt. No. 15 at 6.) Plaintiff claims that "he tried to draft the motions and civil complaints, but without his notes and supporting material, he was not able to draft an adequate complaint or motion." (Dkt. No. 15 at 12.) Plaintiff states he did not have the "exact date and time of the event and his racial profiling and prosecutorial misconduct claims" or other supporting information. (Id.)

Plaintiff's vague allegations as to these cases fail to state a cognizable access to the courts claim. Moreover, the court reviewed these cases and it does not appear that plaintiff can allege actual injury in any of them. In Langston v. Finn, 2:10-cv-2196 EFB P (E.D. Cal.), plaintiff was able to file his civil rights complaint on August 16, 2010. Plaintiff filed an amended complaint on November 29, 2010, alleging a due process violation based on plaintiff's erroneous release from prison which he alleged deprived him of good time credits while he was erroneously out of custody; the case was ultimately dismissed based on plaintiff's failure to state a cognizable civil rights claim. (Id., Dkt. No. 17.)

In Langston v. Enkoji, 2:10-cv-2715 GGH P (E.D. Cal.), plaintiff filed his civil rights complaint on October 6, 2010, challenging the circumstances surrounding his 2007 arrest, including an allegation of racial profiling, and events at a May 2008 discovery hearing held during subsequent criminal proceedings. Plaintiff's complaint was dismissed with leave to amend inasmuch as plaintiff's first claim was barred under Heck v. Humphrey, and the prosecutor alleged to have engaged in misconduct during the discovery hearing was entitled to prosecutorial immunity. (2:10-cv-2715 GGH P, Dkt. No. 10.) In his amended complaint, plaintiff did not reallege his prior claims, but instead alleged new claims of prosecutorial misconduct, and claimed his former defense attorney did not turn over all discovery materials as soon as plaintiff wanted. (Id., Dkt. No. 19 at 4.) On April 26, 2011, plaintiff's amended complaint was dismissed, and the action was terminated. (Id. at 5.)

In these two civil rights cases, plaintiff was able to file his claims; neither case was rejected as time-barred. The dismissal of these cases was not based on plaintiff's failure to adduce evidence or provide cogent arguments, but rather on his failure to state cognizable civil rights violations. In addition, because plaintiff was returned to Avenal State Prison by June 10, 2010, it appears plaintiff had possession of his legal materials when he filed these two civil rights cases. Plaintiff "must demonstrate that a non-frivolous legal claim has been frustrated or impeded." Jenkins, at *3. While the filings may have been delayed, plaintiff alleges no specific injury resulting from any delay. Review of these cases does not indicate that plaintiff's ability to litigate effectively was actually hindered by the alleged deprivation of legal materials from November 20, 2009, through June, 2010. Thus, it does not appear that plaintiff can demonstrate actual injury under Lewis v. Casey based on the alleged deprivation of legal materials in 2009.

Finally, in Langston v. Finn, 2:09-cv-0992 LKK KJM P, plaintiff filed a petition for writ of habeas corpus on April 13, 2009, challenging his 2001 conviction for which he was re-sentenced in 2005. (Id.) The petition was found to be time-barred because the statute of limitations period expired on May 10, 2007. (Id., Dkt. No. 23 at 4.) Even with equitable tolling from May 10, 2007, through November 26, 2007, the court found that the limitations period would expire on December 27, 2007, long before the 2009 petition was filed.

First, petitioner filed the petition on April 13, 2009, before he was deprived of his legal materials in November of 2009. Respondent filed a motion to dismiss on February 10, 2010, and plaintiff timely opposed the motion on March 23, 2010, while housed in the Sacramento County Jail. (Id., Dkt. No. 21.) In his opposition, plaintiff did not file a request for extension of time, claiming he needed access to legal materials, or mention a lack of access to his legal materials. (Id.) On June 16, 2010, plaintiff filed a notice of change of address stating he was housed at Avenal State Prison on June 10, 2010. (Id., Dkt. No. 22.) On July 13, 2010, plaintiff filed objections from Avenal, and again did not mention an inability to access his legal materials. (Id., Dkt. No. 24.) Thus, the record in plaintiff's habeas case does not reflect that the alleged deprivation of legal materials hindered plaintiff's ability to pursue this case.

Second, the resolution of plaintiff's habeas case demonstrates that the deprivation of legal materials did not cause plaintiff actual injury. As noted above, the statute of limitations period expired in 2007. Plaintiff did not file his habeas petition until April 13, 2009. Thus, the statute of limitations period expired long before plaintiff was deprived of his legal materials in 2009; therefore, plaintiff did not suffer an actual injury in his habeas case, 2:09-cv-0992 LKK KJM P.

Accordingly, plaintiff should not renew his access to court claims in connection with the three civil cases discussed above.

V. Conclusion

For all of the above reasons, plaintiff's amended complaint is dismissed, and plaintiff is granted leave to file a second amended complaint.

If plaintiff chooses to file a second amended complaint, plaintiff should use the court's complaint form, and may append handwritten pages to articulate the facts and claims, if needed. Plaintiff should paginate his filing in order, for example, from pages 1 through 14.

Plaintiff must clearly identify the individuals named as defendants.

In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's second amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This requirement is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the original pleading no longer serves any function in the case. Therefore, in a second amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's amended complaint is dismissed.

2. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Amendment and submit the following documents to the court:

a. The completed Notice of Amendment; and

b. An original and one copy of the Second Amended Complaint.

Plaintiff's second amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the second amended complaint must bear the docket number assigned this case and must be labeled "Second Amended Complaint"; failure to file a second amended complaint in accordance with this order may result in the dismissal of this action.

3. The Clerk of the Court is directed to send plaintiff the form for filing a civil rights complaint.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

WALTER SHANE LANGSTON, Plaintiff, v. WARDEN JAMES HARTLEY, SGT. CRUZ, et al., Defendants.

No. 2:10-cv-3191 KJN P

NOTICE OF AMENDMENT

Plaintiff hereby submits the following document in compliance with the court's order filed

Second Amended Complaint

DATED:

Plaintiff

Not Reported in F.Supp.2d, 2008 WL 4058088 (E.D.Cal.) (Cite as: 2008 WL 4058088 (E.D.Cal.)) Randolph Cregger & Chalfant LLP, Sacramento, CA, for Defendants.

Only the Westlaw citation is currently FINDINGS & RECOMMENDATIONS available.

United States District Court, KIMBERLY J. MUELLER, United States Magistrate Judge.

E.D. California. *1 Plaintiff is a state prison inmate Jamal Albert JENKINS, Plaintiff, proceeding pro se with a civil rights action under v. 42 U.S.C. § 1983, alleging that defendant Riley BARTLEY, Defendants. denied him access to the law library from No. CIV S-05-358 LKK KJM P. February through June 2004, while he was a pretrial detainee at Sacramento County Jail, and Aug. 28, 2008. that defendant Bartley removed materials from West KeySummaryCivil Rights 78 1094 a letter plaintiff mailed to his mother.

Defendants have moved for summary judgment. 78 Civil Rights I. Summary Judgment Standards Under Rule 56 78I Rights Protected and Discrimination Summary judgment is appropriate when it is Prohibited in General demonstrated that there exists "no genuine issue 78k1089 Prisons as to any material fact and that the moving party 78k1094 k. Access to Courts. Most is entitled to a judgment as a matter of law." Cited Cases Fed.R.Civ.P. 56(c).

Inmate's § 1983 claim that his First Under summary judgment practice, the Amendment right of access to the courts was moving party violated when he was unable to go the jail's law library was barred by Heck v. Humphrey. The always bears the initial responsibility of inmate claimed he was not able to pursue habeas informing the district court of the basis for its actions related to the then-pending criminal motion, and identifying those portions of "the proceedings or assert his right to proceed pro se pleadings, depositions, answers to in the criminal case against him. If the court interrogatories, and admissions on file, found that plaintiff was prevented from asserting together with the affidavits, if any," which it his Faretta right to self-representation or to believes demonstrate the absence of a genuine challenge some phase of the prosecution through issue of material fact. a pretrial habeas petition, that finding would have necessarily implied the invalidity of the Celotex Corp. v. Catrett, 477 U.S. 317, 323, underlying conviction. U.S.C.A. Const.Amend. 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting 1; 28 U.S.C.A. § 2254; 42 U.S.C.A. § 1983; Fed.R.Civ.P. 56(c). "[W]here the nonmoving Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. party will bear the burden of proof at trial on a Jamal A. Jenkins, Soledad, CA, pro se. dispositive issue, a summary judgment motion may properly be made in reliance solely on the Robert L. Chalfant, Wendy M. Motooka, 'pleadings, depositions, answers to interrogatories, and admissions on file.' " Id. *2 In the endeavor to establish the existence Indeed, summary judgment should be entered, of a factual dispute, the opposing party need not after adequate time for discovery and upon establish a material issue of fact conclusively in motion, against a party who fails to make a its favor. It is sufficient that "the claimed factual showing sufficient to establish the existence of dispute be shown to require a jury or judge to an element essential to that party's case, and on resolve the parties' differing versions of the truth which that party will bear the burden of proof at at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, trial. See id. at 322. "[A] complete failure of the "purpose of summary judgment is to 'pierce proof concerning an essential element of the the pleadings and to assess the proof in order to nonmoving party's case necessarily renders all see whether there is a genuine need for trial.' " other facts immaterial." Id. In such a Matsushita, 475 U.S. at 587 (quoting circumstance, summary judgment should be Fed.R.Civ.P. 56(e) advisory committee's note on granted, "so long as whatever is before the 1963 amendments). district court demonstrates that the standard for entry of summary judgment, as set forth in Rule In resolving the summary judgment motion, 56(c), is satisfied." Id. at 323. the court examines the pleadings, depositions, answers to interrogatories, and admissions on If the moving party meets its initial file, together with the affidavits, if any. responsibility, the burden then shifts to the Fed.R.Civ.P. 56(c). The evidence of the opposing party to establish that a genuine issue opposing party is to be believed. See Anderson, as to any material fact actually does exist. See 477 U.S. at 255. All reasonable inferences that Matsushita Elec. Indus. Co. v. Zenith Radio may be drawn from the facts placed before the Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 court must be drawn in favor of the opposing L.Ed.2d 538 (1986). In attempting to establish party. See Matsushita, 475 U.S. at 587. the existence of this factual dispute, the Nevertheless, inferences are not drawn out of the opposing party may not rely upon the allegations air, and it is the opposing party's obligation to or denials of its pleadings but is required to produce a factual predicate from which the tender evidence of specific facts in the form of inference may be drawn. See Richards v. Nielsen affidavits, and/or admissible discovery material, Freight Lines, 602 F.Supp. 1224, 1244-45 in support of its contention that the dispute (E.D.Cal.1985), aff'd, 810 F.2d 898, 902 (9th exists. See Fed.R.Civ.P. 56(e); Matsushita, 475 Cir.1987). Finally, to demonstrate a genuine U.S. at 586 n. 11. The opposing party must issue, the opposing party "must do more than demonstrate that the fact in contention is simply show that there is some metaphysical material, i.e., a fact that might affect the doubt as to the material facts .... Where the outcome of the suit under the governing law, see record taken as a whole could not lead a rational Anderson v. Liberty Lobby, Inc., 477 U.S. 242, trier of fact to find for the nonmoving party, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); there is no 'genuine issue for trial.' " T.W. Elec. Serv., Inc. v. Pacific Elec. Matsushita, 475 U.S. at 587 (citation omitted). Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987), and that the dispute is genuine, i.e., On May 7, 2007, the court advised plaintiff the evidence is such that a reasonable jury could of the requirements for opposing a motion return a verdict for the nonmoving party, see pursuant to Rule 56 of the Federal Rules of Civil Wool v. Tandem Computers, Inc., 818 F.2d Procedure. See Rand v. Rowland, 154 F.3d 952, 1433, 1436 (9th Cir.1987). 957 (9th Cir.1998) (en banc), cert. denied, 527 U.S. 1035, 119 S.Ct. 2392, 144 L.Ed.2d 793 (1999), and Klingele v. Eikenberry, 849 F.2d is improper. Orr v. Bank of America, NT 409 (9th Cir.1988). & SA, 285 F.3d 764, 774 (9th Cir.2002)

(requirements for authenticating a

II. Access To The Court portion of a deposition). However, defendants have lodged the deposition

In his amended complaint, plaintiff alleges transcript, properly certified, to which that his First Amendment right of access to the the court refers. courts was violated when he was unable to go the jail's law library. Defendant Riley argues that FN2. Although this pleading was not this cause of action is barred by Heck v. signed under the penalty of perjury or Humphrey, that plaintiff is unable to show actual otherwise verified, defendants rely on its injury, and that she is entitled to qualified averments in their statement of immunity. undisputed facts.

A. Facts

*3 Plaintiff asserts that had he been given

Plaintiff was arrested in January 2004 and access to the law library during this critical booked into Sacramento County Jail, where he phase of the prosecution against him, he could remained through his conviction in October have "read law documents that would have 2006. Deposition of Jamal Jenkins (Jenkins allowed me to represent myself," prepared Depo.) at 9:23-10:1, 12:1-3.FN1 Plaintiff was habeas petitions and obtained a better outcome. represented initially by Deputy Public Defender Jenkins Depo. at 15:5-8, 16:23-17:20.

Paula Weikel, but in February 2004, he retained Charles Bloodgood. Id. at 19:2-3 & 21-23, Plaintiff was convicted on October 5, 2006. 20:16, 21:16. Petitioner was not satisfied with At the time his deposition was taken and the either lawyer's performance and so sought access motion for summary judgment was filed, his to the law library beginning in February and appeal of the conviction was pending. Jenkins continuing through June 2004. Amended Depo. at 12:3-6, 13:11-13; Motion For Summary Complaint (Am.Compl.) FN2 at 3-4; Opposition Judgment, [First] Request For Judicial Notice. (Opp'n), Ex. B at 8-9 (plaintiff's requests for law On May 13, 2008, the Court of Appeal for the library access). In May 2004, he discharged Third Appellate District affirmed plaintiff's Attorney Bloodgood. Jenkins Depo. at 20:23-24. conviction but directed the Superior Court to Plaintiff proceeded pro se from September correct the minute order concerning plaintiff's through December 2004 and thereafter was sentence. See Second Request for Judicial represented by Attorney Miller and Attorney Notice (opinion in People v. Jenkins, C051852). Bowman. Id. at 23:10-12, 24:18-22. He did not represent himself during the period of time he B. Access To The Court and Heck v. Humphrey alleges that defendant Riley denied him access to the law library. Id. at 22:23-23:4. Jail policies In Heck v. Humphrey, the United States provided that inmates with pro se status were Supreme Court held: given priority access to the law library. Opp'n, [I]n order to recover damages for allegedly Ex. B at 1-2 (Riley's response to request for unconstitutional conviction or imprisonment, admissions no. 8) & 3 (jail policy). or for other harm caused by actions whose

FN1. Defendants have attempted to unlawfulness would render a conviction or authenticate portions of the deposition sentence invalid, a § 1983 plaintiff must prove through the declaration of counsel; this that the conviction or sentence has been reversed on direct appeal, expunged by U.S. 343, 350-51, 116 S.Ct. 2174, 135 L.Ed.2d executive order, declared invalid by a state 606 (1996). Instead, law library access serves as tribunal authorized to make such one means of ensuring the constitutional right of determination, or called into question by a access to the courts. See id. at 351. A prisoner federal court's issuance of a writ of habeas claiming that his right of access to the courts has corpus, 28 U.S.C. § 2254. A claim for been violated due to inadequate library access damages bearing that relationship to a must show that: 1) access was so limited as to be conviction or sentence that has not been so unreasonable, and 2) the inadequate access invalidated is not cognizable under § 1983. caused actual injury. Vandelft v. Moses, 31 F.3d Thus, when a state prisoner seeks damages in 794, 797 (9th Cir.1994). A prisoner cannot make a § 1983 suit, the district court must consider conclusory declarations of injury, but instead whether a judgment in favor of the plaintiff must demonstrate that a non-frivolous legal would necessarily imply the invalidity of his claim has been frustrated or impeded. It is not conviction or sentence; if it would, the enough for an inmate to show some sort of complaint must be dismissed unless the denial: he must also show "actual injury" from plaintiff can demonstrate that the conviction or the denial or delay of services. The Supreme sentence has already been invalidated. But if Court has described the actual injury the district court determines that the plaintiff's requirement: action, even if successful, will not demonstrate the invalidity of any outstanding criminal *4 [T]he inmate therefore must go one step judgment against the plaintiff, the action further and demonstrate that the alleged should be allowed to proceed, in the absence shortcomings in the library or legal assistance of some other bar to the suit. program hindered his efforts to pursue a legal claim. He might show, for example, that a 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 complaint he prepared was dismissed for L.Ed.2d 383 (1994). In Heck, the plaintiff did failure to satisfy some technical requirement not allege he was denied access to the courts but which, because of deficiencies in the prison's rather claimed that state prosecutors and police legal assistance facilities, he could not have had destroyed evidence. Id. at 478-79. In known. Or that he suffered arguably actionable contrast, plaintiff's claims in this case do not harm that he wished to bring before the courts, directly implicate his conviction; instead, he but was so stymied by inadequacies of the law argues that his First Amendment right of access library that he was unable even to file a to the court was abridged when he was denied complaint. law library access and so was unable to research and understand his right to proceed in pro per Lewis, 518 U.S. at 351. and to take other actions to challenge and supplement the perceived inadequacies of Two cases from the Seventh Circuit have counsel's performance. discussed the interplay between Heck and access to the court.FN3 In Nance v. Vieregge, 147 F. 3d Although an inmate has a constitutionally 589 ( 7th Cir. 1998), the inmate plaintiff was to protected right of meaningful access to the be transferred from one prison to another, which courts, there is no freestanding constitutional was closer to the court that was going to hear his right to law library access for prisoners. Bounds motion to withdraw his guilty plea. The property v. Smith, 430 U.S. 817, 820-21, 97 S.Ct. 1491, clerk told plaintiff he could not take his legal 52 L.Ed.2d 72 (1977); see Lewis v. Casey, 518 documents, which included "photocopies of cases Nance wanted to have handy when arguing in support of his motion____" Id. at To get damages you must prove you lost 590. The warden assured plaintiff that his legal something of monetizable value; but this is not materials would follow him. They did not and required for an injunction-indeed, the plaintiff eventually filed suit. The court inadequacy of one's damages remedy is observed: normally a prerequisite to injunctive relief. If a prisoner whose access to the courts is being FN3. The cases cited by defendant are blocked in violation of the Constitution cannot not apposite, for they concern suits prove that, had it not been for the blockage, he attacking 3 some part of the criminal would have won his case or at least settled it proceedings directly rather than through for more than $0 (the point emphasized in the lens of an access to courts claim. Lewis ), he cannot get damages but he can get an injunction. In a case such as Heck, where If the injury in question is losing the the prisoner is complaining about being underlying case, then Heck ... comes into hindered in his efforts to get his conviction set play.... Nance pleaded guilty; his motion to aside, the hindrance is of no consequence if withdraw the plea was denied; and the conviction was valid, and so he cannot get although the prison's unconstitutional damages until the conviction is invalidated. hindrance of his efforts to withdraw the But suppose that he is complaining instead plea ( if that is what occurred) would be a about being hindered in his efforts to rectify good ground for a new hearing on the illegal prison conditions. Since it is well motion to set aside the plea, it would not known ... that colorable claims have a establish that Nance is entitled to damages settlement value, the prisoner may be able to for wrongful incarceration-not unless he show that had he not been hindered in went to trial and was acquitted, or the prosecuting his claim he might have gotten invalidity of his incarceration was some money for it, even if it wasn't a sure established in some other fashion. The winner. He has to show that the claim was holding of Lewis that a claim based on colorable and so had some value in the deprivation of access to the courts requires litigation market but he does not have to proof of concrete injury, combined with the establish the validity (as distinct from the holding of Heck, means that a prisoner in colorableness) of the claim as a precondition Nance's position must have the judgment to obtaining damages. In the setting of Heck, annulled before damages are available for there is nothing corresponding to a colorable wrongful imprisonment. claim; either the conviction was invalid, in which case the defendant suffered a legally Id. at 591. cognizable harm, or it is not and he did not.

A slightly different situation gave rise to the decision in Hoard v. Reddy, 175 F.3d 531 (7th *5 Id. at 533-34; but see Lueck v. Wathen, Cir.1999). In that case, plaintiff sought damages 262 F.Supp.2d 690 (N.D.Tex.2003) (not from various county officials, alleging they resolving Heck question when officials seized hindered his ability to litigate a state habeas documents that prevented plaintiff from filing a action. Id. at 532. The Court of Appeals upheld habeas petition). the district court's dismissal of the action and ruminated about the intersection of Heck and In this case, unlike Nance and Hoard, Lewis: plaintiff alleges he was stymied in his efforts to challenge aspects of the then-pending Sheldon v. Hundley, 83 F.3d 231, 234 (8th prosecution and his lawyer's performance and to Cir.1996) (when First Amendment claims are assert his right of self-representation. Despite "so entangled with the propriety of the these differences, the court finds that Heck disciplinary result," they are barred by Heck ). applies and bars the claim, for reasons explained below. FN4. Faretta v. California, 422 U.S.

806, 95 S.Ct. 2525, 45 L.Ed.2d 562

In Valdez v. Rosenbaum, 302 F.3d 1039 (9th (1975).

Cir.2002), the plaintiff alleged that while he was a federal pretrial detainee held by arrangement in C. Actual Injury a state facility, jail officials and the Assistant United States Attorney prosecuting him Defendant Riley also asserts plaintiff cannot restricted his access to the telephone for several show injury in fact from the library restrictions weeks to prevent him from warning his because he was represented by counsel during confederates in a drug conspiracy that an the relevant time period. As the Supreme Court indictment had been filed against them. During recognized in Lewis, 518 U.S. at 351, "actual this restriction, plaintiff was allowed to have a injury" is a constitutional prerequisite to daily telephone call with his lawyer, but had to establishing a claim based on the denial of submit a written request to do so. Id. at 1042. access to the courts. Plaintiff counters that After his conviction, he filed a civil rights counsel's ineffectiveness undercuts defendant's action, alleging "the requirement that he obtain argument. permission to telephone his attorney made it In Bounds, 430 U.S. at 830-31, the Supreme practically impossible to have a telephone Court recognized that correctional officials may conversation with his attorney," and claiming a provide inmates access to law libraries or to Sixth Amendment violation. Id. at 1049. The people trained in the law as a means of Ninth Circuit refused to consider the claim, satisfying the inmates' right of access to the finding it Heck-barred because it would courts. Accordingly, the appointment of counsel necessarily imply the invalidity of his later or the provision of access to retained counsel conviction. Id. may be a means of satisfying the state's obligation to provide access to the courts. Although Valdez challenged the telephone Wilson v. Blankenship, 163 F.3d 1284, 1291 restriction on Sixth Amendment grounds, the (11th Cir.1998) (no injury in fact when plaintiff logic applies to plaintiff's access-to-the-courts was represented by appointed counsel in claim, as recognized by Nance and Hoard. Here, criminal proceedings); Ching v. Lewis, 895 F.2d plaintiff claims he was not able to pursue habeas 608 (9th Cir.1990) (right of access to the court actions related to the pending criminal includes right to contact attorney); Davis v. proceedings or assert his right to proceed pro se Milwaukee County, 225 F.Supp.2d 967 in the criminal case against him. If this court (E.D.Wis.2002) (no injury from inadequate law were to find that plaintiff was prevented from library when plaintiff had lawyer in criminal asserting his Faretta FN4 right to proceedings).

self-representation or to challenge some phase of the prosecution through a pretrial habeas *6 Plaintiff argues, however, that his petition, that finding would necessarily imply retained counsel's ineffectiveness means that the invalidity of the underlying conviction. counsel's representation could not substitute for Defendant is entitled to summary judgment. See plaintiff's own access to the law library. Opp'n at 10. The Second Circuit has rejected this As in Bourdon, plaintiff has not shown that argument. the jail prevented him from contacting counsel or hampered his ability to pursue claims through In Bourdon v. Loughren, 386 F.3d 88 (2d counsel. Accordingly, he has not demonstrated Cir.2004), the plaintiff argued he was denied injury in fact. access to the courts in connection with pending criminal charges when the defendants refused to III. Interference With The Mail provide him with materials he requested, particularly materials that would have allowed Plaintiff contends "a lengthy legal brief him to prepare a motion to dismiss the charges chronicling police misconduct" and other and a motion to discharge counsel. He further materials he mailed from the jail were missing argued that counsel was ineffective and so could from the envelope when plaintiff's mother not satisfy the state's obligation to provide him received it. Am. Compl. at 8-9. Defendant with access to the courts. Bartley counters that this claim is barred by collateral estoppel and that plaintiff cannot The Court of Appeals rejected plaintiff's provide any proof that defendant Bartley argument. It found that the standard of attorney removed the materials from the envelope. effectiveness was not coextensive with the Prisoners have "a First Amendment right to Bounds standard of adequate assistance from send and receive mail." Witherow v. Paff, 52 those trained in the law. Bourdon, 386 F.3d at F.3d 264, 265 (9th Cir.1995) (per curiam). 96-97. The court said: "[T]he addressee as well as the sender of direct personal correspondence derives from the First [T]he term "adequate" modifying "assistance and Fourteenth Amendments a protection from persons trained in the law" does not against unjustified governmental interference incorporate the effectiveness inquiry pertinent with the intended communications." Procunier to the Sixth Amendment but instead refers to v. Martinez, 416 U.S. 396, 408-09, 94 S.Ct. the capability of qualified and trained 1800, 40 L.Ed.2d 224 (1974), overruled on persons-rather than legal amateurs and other grounds, Thornburgh v. Abbott, 490 U.S. laypersons-to provide, in dispensing legal 401, 407, 109 S.Ct. 1874, 104 L.Ed.2d 459 assistance, access to the courts. Because (1989). attorneys, by definition, are trained and qualified in legal matters, when a prisoner A. Facts with appointed counsel claims that he was hindered by prison officials in his efforts to *7 Sacramento County Jail inmates put their defend himself ..., he must show that, on the outgoing mail, unsealed, in a slot in their facts of his case, the provision of counsel did "pod"-a grouping of cells-unsealed. Jenkins not furnish him with the capability of bringing Depo. at 40:7-13. Around 8:30 p.m. on July 23, his challenges before the courts, not that he 2004, plaintiff put two envelopes addressed to was denied effective representation in the his mother in the pod mailbox; although both court. were delivered, one had items missing when his mother received it. Jenkins Depo. at 40:15-24, Id. at 98; see also Schrier v. Halford, 60 41:3-5. Among the missing documents were a F.3d 1309, 1314 (8th Cir.1995) (citations statement about police misconduct that plaintiff omitted). had written and a letter from the Sheriff's Department; plaintiff hoped to use the statement as support for a habeas petition during trial. cannot establish a chain of control over his Jenkins Depo. at 44:8-12, 46:1-3 & 14-21, outgoing mail_____ 75:22-76:12. Defendant Bartley processed the mail from plaintiff's pod the evening of July In these circumstances, the court cannot 23rd. Jenkins Depo. 53:20-21, 59:5. provide any relief. There is no policy to Defendant Bartley agrees that while evaluate, and no documents being held by jail employed at the Sacramento County Main Jail officers_____ facility, his duties included processing inmate mail on the third floor. MSJ, Declaration of MSJ, Ex. C at 2-3. The court did not hold a Mark Bartley (Bartley Decl.) ¶ 4. He retrieved hearing on this petition. Jenkins Depo. 63:21-25. mail from the mail slots, separated it by Petitioner pursued these issues, unsuccessfully, envelope size, and put the groups into the in the Court of Appeal and the California second floor mailbox for further processing; he Supreme Court. Jenkins Depo. 65:5-9, 15-19. did not seal inmates' mail and did not inspect the contents of the mail. Id. ¶¶ 5-6; Opp'n, Ex. C at B. Collateral Estoppel 10 (No. 34). According to the Inmate's Handbook, after mail is inspected, "officers shall The United States Supreme Court has seal the letters and process them for mailing observed: within 24 hours." Opp'n, Ex. C at 7. A fundamental precept of common-law adjudication, embodied in the related doctrines Bartley did not remove any material from of collateral estoppel and res judicata, is that a any inmate's mail at any time. Bartley Decl. ¶ 7. right, question or fact distinctly put in issue and directly determined by a court of In July 2005, petitioner filed a habeas action competent jurisdiction ... cannot be disputed in in Sacramento County Superior Court, No. a subsequent suit between the same parties or 05F06677, alleging that in April 2005 certain their privies. Under res judicata, a final materials his mother claimed to have mailed to judgment on the merits bars further claims by him at the jail were not in the envelopes when he parties or their privies based on the same cause received them; that a legal brief was taken from of action. Under collateral estoppel, once an an envelope he addressed to his mother on June issue is actually and necessarily determined by 22, 2004; and that various other pieces of mail a court of competent jurisdiction, that were delayed or withheld. MSJ, Ex. C at 5, 13, determination is conclusive in subsequent suits 15, 50. based on a different cause of action involving a party to the prior litigation.

The Superior Court denied the petition:

*8 Montana v. United States, 440 U.S. 147,

Petitioner contends that jail officials opened 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) mail and removed some website print-outs that (internal citations and quotations omitted). The were sent to him in two envelopes, that they doctrines of collateral estoppel and res judicata removed items from another envelope that he apply in civil rights actions under 42 U.S .C. § sent.... Jail officials say they didn't remove 1983 when the constitutional claim is based on anything from the envelopes.... the same alleged act or omission that was the subject of a state court action, and when the state Unfortunately [petitioner] cannot establish a courts would give preclusive effect to its chain of control over this mail. Similarly, he judgment. Allen v. McCurry, 449 U.S. 90, 104-05, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); California Supreme Court denied relief on this Migra v. Warren City School District Board, claim. Jenkins Depo. at 65:15-19. There is a 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 slight discrepancy regarding the date plaintiff (1984); Valley Wood Preserving, Inc. v. Paul, put the letter in the pod mailbox: in the amended 785 F.2d 751, 753 (9th Cir.1986). A judgment in complaint, plaintiff alleges it was on July 23, a state habeas action may preclude further 2004, while in the state habeas petition, he litigation of issues in a federal civil rights action. claims it was on June 22, 2004. Am. Compl. at Sperl v. Deukmejian, 642 F.2d 1154, 1155 (9th 8; MSJ, Ex. C at 13. However, in an attachment Cir.1981); Silverton v. Department Of The to the state habeas petition, plaintiff describes Treasury, 644 F.2d 1341, 1346-47 (9th the contents of the letter to his mother as Cir.1981); see also Harris v. Jacobs, 621 F.2d including a statement about police misconduct, 341, 343-44 (9th Cir.1980) (state habeas a complaint to the Citrus Heights police determination that the prison had provided department, a letter from the Internal Affairs constitutionally adequate medical care barred his Department of the Sheriff's office and a letter § 1983 action on the same ground, but did not from the Sacramento County Law Library. MSJ, preclude his Fourteenth Amendment claim of Ex. C at 51. In his deposition, he described the entitlement to consult outside doctor). documents in the letter at issue in this case as including a statement chronicling police In California, harassment, a letter from the Sacramento County Law Library, a letter from the Citrus Heights collateral estoppel has been found to bar Police Department, and a letter from the relitigation of an issue decided at a previous Sacramento County Sheriff's Department. proceeding if (1) the issue necessarily decided Jenkins Depo. at 45:11-18; 46:14-21. The court at the previous [proceeding] is identical to the finds that the issue raised in the instant one which is sought to be relitigated; (2) the complaint was included in the issues presented previous [proceeding] resulted in a final in the state habeas proceedings. judgment on the merits; and (3) the party against whom collateral estoppel is asserted *9 Plaintiff argues that the state proceedings was a party or in privity with a party in the should not be given preclusive effect because he prior [proceeding]. never received a hearing on the petition challenging the loss and delay of his mail. Opp'n People v. Sims, 32 Cal.3d 468, 484, 186 at 15. However, the issue raised here was Cal.Rptr. 77, 651 P.2d 321 (1982), superseded "actually litigated" in the state habeas action on other grounds by statute, Cal. Vehicle Code because it was "properly raised, by the § 13353.2 (internal quotation omitted); see also pleadings or otherwise, and [was] submitted for Maldonado v. Harris, 370 F.3d 945, 952 (9th determination, and [was] determined.... A Cir.2004), cert. denied sub nom. Kempton v. determination may be based on a failure of proof Maldonado, 544 U.S. 968, 125 S.Ct. 1725, 161 ...." Sims, 32 Cal.3d at 484, 186 Cal.Rptr. 77, L.Ed.2d 615 (2005) (discussing California's 651 P.2d 321 (emphases in original; internal "primary rights" doctrine of claim preclusion). quotations, citations omitted). In this case, too, the Superior Court determined the issues raised There is no dispute that plaintiff was the in plaintiff's habeas action based on a failure of petitioner in the state habeas proceedings or that proof that anyone in the jail had tampered with the action proceeded to a final judgment; in his plaintiff's mail. deposition, plaintiff acknowledged that the Accordingly, because California would give (9th Cir.1991). the habeas determination preclusive effect, plaintiff's civil rights action based on mail E.D.Cal.,2008. tampering is similarly barred.

Jenkins v. Bartley

C. Other Matters Not Reported in F.Supp.2d, 2008 WL 4058088 (E.D.Cal.)

Plaintiff argues that defendant Bartley's END OF DOCUMENT declaration should be rejected because of Bartley's general animus against inmates and because of the jail manual, which requires that mail be sealed within twenty-four hours of inspection.

Even if plaintiff's claim that Bartley disliked inmates could potentially preclude summary judgment, it is based on an unsworn letter from inmate Norman Whitehorn, who claims that Bartley handled him roughly. Opp'n, Ex. C at 15. The court will not consider this letter. See United States v. Ritchie, 342 F.3d 903, 909 (9th Cir.2003). Nor do the contents of the jail handbook preclude summary judgment: the handbook says nothing about who is responsible for sealing the mail and so does not create a disputed issue of material fact.

IT IS THEREFORE RECOMMENDED that defendants' motion for summary judgment be granted.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153


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