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Emiliano Lopez v. James A. Yates

November 6, 2012

EMILIANO LOPEZ,
PLAINTIFF,
v.
JAMES A. YATES, ET AL.,
DEFENDANTS.



ORDER DISMISSING FIRST AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Docs. 10, 14, 23 THIRTY-DAY DEADLINE

Screening Order

I. Procedural History, Screening Requirement, and Standard

On January 21, 2011, Plaintiff Emiliano Lopez ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging denial of access to courts regarding child visitation and to challenge the $3,766.28 taken by child support from his retirement. Doc. 1.

On August 25, 2011, Plaintiff filed a first amended complaint. Doc. 10. On September 22, 2011, the Court dismissed Plaintiff's case, for failure to state a claim, since Plaintiff did not allege a denial of access to courts for a direct criminal appeal, habeas petition, or civil rights action, in accordance with Lewis v. Casey, 518 U.S. 343, 354 (1996). Doc. 14. On September 26, 2011, the Ninth Circuit found that a prisoner could pursue a § 1983 access to courts claim for any case that has a reasonable basis in law or fact. Silva v. Di Vittorio, 658 F.3d 1090, 1102-03 (9th Cir. 2011). On September 25, 2012, the Ninth Circuit reversed this Court's decision, noting that Plaintiff could bring a claim alleging denial of access to courts for a child custody and child support case, in accordance with Silva. Doc. 23. The Ninth Circuit vacated and remanded for further proceedings. Id. On October 18, 2012, the Ninth Circuit issued the formal mandate to this Court. Doc. 24.

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, 678 (2009) (citing Bell Atlantic 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, 556 U.S. at 678.

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 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, 556 U.S. at 678-79; 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, 556 U.S. at 678; Moss, 572 F.3d at 969.

Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal, 556 U.S. at 678-79; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 556 U.S. at 677-79; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

II. Plaintiff's First Amended Complaint

In Plaintiff's first amended complaint, he names Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation ("CDCR"); James A. Yates, Warden (retired); Robert Trimble, Acting Warden; Larry Mackin, Litigation Coordinator; L. Wilson, Litigation Coordinator Office Assistant; and P. Tuman, Correctional Counselor I. Am.Compl. at 1-3, 7, Doc. 10.

Plaintiff has been estranged from his daughter since his incarceration in August 2004. Id. at 5. In September 2004, Sheree Valdevizeo filed for child support. Id. Plaintiff had been communicating with his daughter until he was sent to prison in May 2005. Id. Plaintiff spent nine months in a prison reception center awaiting surgery. Id. His only avenue of communication was through the U.S. Postal mail. Id. Plaintiff never heard from his daughter or his daughter's mother during that time. Id. In January 2006, Plaintiff arrived at Pleasant Valley State Prison ("PVSP"), where he tried unsuccessfully to communicate with his daughter. Id. After many failed attempts, Plaintiff sought help to petition the court. Id. Plaintiff did not know how to file anything in the court and tried many times to petition the court, from 2007 until August 2009, when Plaintiff successfully filed for child visitation and modification of child support with the help of the family law facilitator. Id. The court set an order to show cause hearing for October 26, 2009. Id.

On August 18, 2009, Plaintiff submitted a CDCR form CA-22 request to the prison litigation office, inquiring how to obtain access to a telephone to attend his hearing telephonically. Id. On August 20, 2009, defendant L. Wilson replied to the request stating, "it is your responsibility to set up your court call." Id. at 6. Stapled to the request form was a memorandum signed by defendant L. Mackin, Litigation Coordinator, with instructions on how to set up a court call using Court Call, LLC. Id. On September 7, 2009, Plaintiff wrote a letter to Court Call, LLC following the instructions given to him by the litigation office. Id. On September 24, 2009, Court Call, LLC replied informing Plaintiff that the department where his hearing is scheduled does not utilize the Court Call, LLC service. Id. On September 27, 2009, Plaintiff submitted a request form to the litigation office, informing them that Court Call, LLC is not able to facilitate a call in the department where Plaintiff's hearing is scheduled. Id. The litigation office never replied. Id. A second request was submitted, and there was no reply. Id.

Plaintiff sought the help of his correctional counselor, defendant P. Tuman. Id. Plaintiff approached her on the yard, told her about his upcoming court hearing, and if she could make arrangements to allow Plaintiff access to a telephone because the litigation office was not responding to his requests. Id. Her attitude was dismissive and told Plaintiff to approach her later. Id. On October 12, 2009, Plaintiff sent P. Tuman a request form to access a telephone to attend his hearing. Id. Plaintiff enclosed the letter from Court Call, LLC, that said they were unable to facilitate their services. Id. Plaintiff also wrote that the litigation office had not replied to any of his requests. Id. The request was slid under Tuman's door in the program office by Tony Pcheco, a porter. Id. These documents were lost in defendant Tuman's office. Id.

As a result of being ignored by the litigation office and correctional counselor P. Tuman, Plaintiff missed his order to show cause hearing, where he intended to inform the court that he has been deprived of a reasonable relationship with his daughter. Id. Plaintiff has not been able to see her, talk to her, or correspond with her. Id. Plaintiff did not even know she moved and was living in another town. Id. Plaintiff wanted to inform the court that his due process rights are being violated because no child custody hearing was ever held challenging Plaintiff's parental rights Id. Plaintiff was also challenging the $3,766.28 that child support took from Plaintiff's retirement account after two years of his ...


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