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Chester Ray Wiseman v. C. Herrera et al

May 1, 2013

CHESTER RAY WISEMAN,
PLAINTIFF,
v.
C. HERRERA ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDINGS AND RECOMMENDATION DISMISSING CASE WITHOUT LEAVE TO AMEND (Doc. 9)

Plaintiff Chester Ray Wiseman ("Plaintiff") is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 9). The Court dismissed Plaintiff's complaint on January 16, 2013, but granted Plaintiff leave to file an amended complaint. (Doc. 7). Plaintiff filed his first amended complaint on February 21, 2013. (Doc. 9). The Court now screens the first amended complaint pursuant to 28 U.S.C. § 1915A.

For the reasons set forth below, the Court recommends the matter be DISMISSED without leave to amend.

I.SCREENING REQUIREMENT

Because Plaintiff is seeking redress from governmental employees in a civil action, the Court is required to screen his complaint in order to identify cognizable claims. 28 U.S.C. § 1915A(a)-(b). The Court shall "dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); 28 U.S.C. § 2 1915(e)(2)(B)(i)-(iii). 3

II.PLEADING STANDARDS

A. Fed. R. Civ. P. 8(a)

"Pro se documents are to be liberally construed" and "'must be held to 'less stringent standards 6 than formal pleadings drafted by lawyers.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting 7 Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "[They] can only be dismissed for failure to state a 8 claim if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim 9 which would entitle him to relief.'" Id. Under Federal Rule of Civil Procedure 8(a), "[a] pleading that states a claim for relief must contain: (1) a short and plaint statement of the grounds for the court's jurisdiction, . . . ; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought." Fed. R. Civ. P. 8(a). Each allegation must be simple, concise, and direct. Fed. R. Civ. P. 8(d)(1). While a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks and citations omitted).

In analyzing a pleading, the Court sets conclusory factual allegations aside, accepts all nonconclusory factual allegations as true, and determines whether those non-conclusory factual allegations accepted as true state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." (Id. at 1949) (internal quotation marks and citation omitted). In determining plausibility, the Court is permitted "to draw on its judicial experience and common sense." Id. at 1950.

B.42 U.S.C. § 1983

In order to sustain a cause of action under 42 U.S.C. § 1983, a plaintiff must show (i) that he suffered a violation of rights protected by the Constitution or created by federal statute, and (ii) that the violation was proximately caused by a person acting under color of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is satisfied only if a 2 plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act, 3 or omitted to perform an act which he was legally required to do that caused the deprivation 4 complained of. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v. Duffy, 588 5 F.2d 740, 743-44 (9th Cir. 1978)).6

III.FIRST AMENDED COMPLAINT

Plaintiff's cause of action arose while he was incarcerated at Pleasant Valley State Prison ("PVSP") located in Coalinga, California. (Doc. 9 at 3 ¶ 3). Plaintiff names the following as 9 defendants in both their individual and official capacities: (1) C. Herrera, a correctional captain at PVSP, (2) Matthew Cate, Secretary of the California Department of Regulations, (3) R. H. Trimble, the Warden of PVSP, (4) D. Nelson, a correctional lieutenant at PVSP, (5) B. Martinez, a correctional sergeant at PVSP, (6) A. Martinez, a correctional officer and PSVSP, (7) R. Godinez, a correctional officer at PVSP, and (8) C. Solis, the law librarian at PVSP. Id. at 3-5 ¶¶ 4-11. Plaintiff states his complaint as follows:

On July 7, 2011, Plaintiff was placed in the administrative segregation unit ("Ad Seg") of PVSP with "priority legal user" status as he was engaged in active litigation. Id. at 6 ¶ 16. Prisoners in Ad Seg were given eight hours a week to either access the law library or engage in outdoor recreation. Id. at 19-20 ¶ 43. Defendant A. Martinez came to Ad Seg each Friday to sign-up inmates for law library access, which they would be permitted to do on the following Tuesday. Id. at 6 ¶ 16. However, the time allotted for law library access overlapped with the time permitted for outdoor recreation. Id.

On August 19, 2011, while Defendant Godinez came to Ad Seg to sign inmates up for outdoor recreation, Plaintiff requested to simultaneously access the law library and participate in outdoor recreation. Id. at 6 ¶ 17. On that same day, Plaintiff asked Defendant A. Martinez to come to the outdoor recreation area to sign-up inmates for law library access. Id. at 7 ¶ 18. Defendant Godinez and A. Martinez informed Plaintiff that he could not access both the law library and the outdoor recreation, as the schedules overlapped. Id. at 6-7 ¶¶ 17, 18; 8 ¶ 19. From July 7, 2011, through October 10, 2011, Plaintiff avers that he was forced to choose between accessing the law library or outdoor recreation. Id. at 9; 18 ¶ 43.

On September 13, 2011, Plaintiff requested that Defendant A. Martinez copy his small claims 2 complaint along with its attachments and exhibits, and also copy an informal reply to an informal 3 response in a habeas corpus matter. Id. at 10 ¶ 24. Defendant Solis refused to copy the unfiled small 4 claims action, unless the California Superior Court first rejected the claim for failure to provide the 5 requisite copies. Id. at 11 ¶ 25. Defendant Solis also refused to copy the informal response to the 6 habeas corpus documents, indicating that it was a letter and not a formal document. Id. at 11 ¶ 26. On 7

October 4, 2011, the Superior Court made copies of the complaint and attachments, but returned the 8 exhibits to Plaintiff, which Defendant Solis and A. Martinez then refused to copy. Id. at 12 ¶ 27. On 9

November 1, 8, 15, and 22, 2011, Plaintiff again submitted documents pertaining to his small claims matter which Defendants A. Martinez and Solis repeatedly ...


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