The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF NO. 14)
Plaintiff Dwayne Swearington is a state prisoner proceeding pro se and
in forma pauperis in this 42 U.S.C. § 1983 civil rights action
originally filed in the United States
District Court for the Northern District of California*fn1
(ECF No. 1) and transferred to this Court. (ECF No. 4.)
Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 8.) The
Court screened the Complaint on July 27, 2012 and dismissed it, with
leave to amend, for failure to state a claim. (ECF No. 9.) On
September 27, 2012, Plaintiff filed a First Amended Complaint (ECF No.
14) which is now before the Court for 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, malicious," or 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).
Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393--94 (1989).
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff augments allegations in his original Complaint and adds Defendants relating to the following events occurring during his previous incarceration at the California Men's Colony in San Luis Obispo, California ("CMC") and his current incarceration at North Kern State Prison ("NKSP").
A. Failure to Deliver Legal Mail; Denying Access to Court
On February 12, 2011 and March 13, 2011, Plaintiff sent legal mail "[signed] out by [Defendant] CMC Correctional Officer Gonzales to be processed out to a [prospective] attorney and District Judge" respectively, relating to a federal civil rights case filed on June 23, 2006, Dwayne Swearington v. Wedell et el., E.D.Cal. Case No. 2:06-cv-01407-GEB-EFB. (First Am. Compl. at 8.) The mail was never received by these addressees. (Id. at 8, 34.) Defendant Corrections Officer Artega returned the February 12th mail directed to the prospective attorney undelivered in October 2011. (Id. at 8, 34.) Failure to deliver the mail resulted in dismissal of the Wedell action.*fn2 (Id.) Plaintiff claims Defendants Gonzales and Artega aided and abetted and conspired in the failure to deliver legal mail denying Plaintiff access to court. (Id. at 9-10.)
Plaintiff met with Defendant CMC Capt. Grooves in October 2011 and complained about the conduct of his subordinates Gonzales and Artega. (Id. at 10.) Grooves took no action, aiding and abetting the failure to deliver legal mail and denial of access to the courts. (Id. at 10-11.)
Plaintiff filed CDC Form(s) 22*fn3 with Defendant CMC Capt. Wisneski, mailroom supervisor, regarding the undelivered mail. (Id. at 11.) Capt. Wisneski had his subordinate, Lt. VanBeek, interview Plaintiff. (Id. at 11-12.) VanBeek engaged in retaliatory cell searches. (Id. at 11-12.) Neither Wisneski nor VanBeek took any corrective action regarding the failure to deliver legal mail and denial of access to the courts and thereby aided and abetted this misconduct.
Plaintiff filed a Form 22 with Defendant McDanial, CMC mailroom supervisor, regarding the undelivered mail. She did not take any action regarding the failure to deliver legal mail and denial of access to the courts (Id. at 13) and thereby also aided and abetted this misconduct.
Defendant Lloyed, CMC Correctional Counselor, refused to honor Plaintiff's medical chrono and demanded the ICC remove Plaintiff from single-cell status notwithstanding his medical condition, in disregard of policy and without approval of the ICC.*fn4 (Id. at 13-14.) Lloyed informed her successor, CMC Correctional Counselor Defendant Landsford, not to honor the medical chrono. (Id.)
Defendant Lansford adversely moved Plaintiff from a medical facility even though he knew policy and procedure were not followed (Id.) and with deliberate indifference to harm caused by placing Plaintiff in a violent situation. (Id. at 14.).
Defendant Risner, Correctional Counselor, conspired in retaliation with other Defendants to allow Plaintiff to be transferred to NKSP and into harms way when Plaintiff should have been held at CMC until an appropriate bed became available. (Id. at 15.)
Defendant Clements, conspiring with Defendants in retaliation for the legal mail grievance, took Plaintiff's property including TV, legal documents, headphones and other items on January 23, 2012 upon his transfer to NKSP; kept this property for up to three weeks (Id.); and removed evidence of Plaintiff's ownership of the property so that he had to replace certain of items of it at NKSP. (Id.) The deprivation of legal documents interfered with Plaintiff's access to Court in the Wedell action.
D. Medical Indifference at NKSP
Defendant Dr. Flores, NKSP primary care physician, disregarded Plaintiff's prior medical chronos and discussed Plaintiff's unspecified confidential medical information in the presence of corrections staff, maliciously and with deliberate indifference to Plaintiff's serious medical needs. (Id. at 16.)
Defendant Dr. Shehata, NKSP primary care physician succeeding Dr. Flores, likewise refused to honor Plaintiff's medical chronos, argued with Plaintiff, made false statements in medical records and to corrections staff in retaliation for Plaintiff's "talking down on other doctors" all so that Plaintiff would be punished by corrections staff (Id. at 17); resulting in Plaintiff refusing medical care from fear of retaliation. (Id.) Plaintiff names as Defendants in their official and individual capacities (1) Gonzales, CMC Correctional Officer, (2) Artega, CMC Correctional Officer, (3) Grooves, CMC Correctional Captain, (4) Wisneki, CMC Correctional Captain, (5) Vanbeek, CMC Correctional Lieutenant, (6) McDanial, CMC Mailroom Supervisor, (7) Lloyed, CMC Correctional Couselor, (8) Lansford, CMC Correctional Counselor, (9) Risner, CMC Correctional Counselor, (10) Clements, CMC Correctional Officer, (11) Dr. Flores, NKSP Primary Care Physician, (12) Dr. Shehata, NKSP Primary Care Physician.*fn5 (Id. at 4-7.)
Plaintiff seeks monetary compensation and injunctive relief directing an end to retaliation, return of his property, and transfer to a facility appropriate to his medical needs. (Id. at 28-31.)
A. Pleading Requirements Generally
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
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 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.'" Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.
Plaintiff alleges staff Defendants Gonzalez, Artega, Grooves, Wisneski, VanBeek and McDaniel aided, abetted and conspired in failing to deliver his legal mail and depriving him of his legal documents denying him access to court and causing dismissal of the Wedell action.
Plaintiff has a right to litigate without interference in pursuit of legal redress for claims that have a reasonable basis in law or facts. Silva v. Di Vittorio 658 F.3d 1090, 1103 (9th Cir. 2011). Claims for denial of access to court 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 can not now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412--415 (2002). The plaintiff must show: 1) the loss of a 'non-frivolous' or 'arguable' underlying claim; 2) the official acts frustrating the litigation; and 3) a remedy that may be awarded as recompense but that is not otherwise available in a future suit. Id. at 413--14.
To establish a violation of the right of access to the court, a prisoner must establish that he or she has suffered an actual injury, a jurisdictional requirement that flows from the standing doctrine and may not be waived. See Lewis v. Casey, 518 U.S. 343, 349. An "actual injury" is "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim." Lewis, 518 U.S. at 348. Plaintiff does not allege ...