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De Cruz v. A. Panizza

United States District Court, N.D. California

June 2, 2015

GERALD DEAN de CRUZ, Plaintiff,
v.
A. PANIZZA, Defendant.

ORDER OF DISMISSAL WITH LEAVE TO AMEND

THELTON E. HENDERSON, District Judge.

Plaintiff, an inmate at San Quentin State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983.[1] Plaintiff is granted leave to proceed in forma pauperis in a separate order. His complaint is now before the Court for initial screening pursuant to 28 U.S.C. § 1915A.

I

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted, " or "seeks monetary relief from a defendant who is immune from such relief." Id . § 1915A(b). Pleadings filed by pro se litigants, however, must be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990).

To state a claim under 42 U.S.C. § 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).

II

A

In his complaint, Plaintiff seeks a preliminary injunction to stop the destruction of legal property in his possession that is required for his criminal appeal. Plaintiff is a condemned prisoner and is represented by counsel on appeal. He argues that the legal property is necessary to demonstrate that counsel is ineffective and there is a conflict of interest.

Plaintiff states that in March 2015, inmates were informed that the prison was going to only allow six cubic feet of personal property and all excess property would be sent home or destroyed. Plaintiff states there was not sufficient time to file inmate appeals, so he sent his property to the property office for storage. On April 15, 2015, Plaintiff was notified that property he sent to the property office must either be sent home or would be destroyed. In the complaint, Plaintiff states that the property will be destroyed by April 28-30, 2015. The Court received Plaintiff's filing on April 29, 2015, though a completed in forma pauperis application was not filed until May 13, 2015.

B

Allegations of destruction or confiscation of legal documents may state a claim for denial of access to the courts. See Morello v. James, 810 F.2d 344, 346-348 (2d Cir. 1987). A plaintiff must allege an "actual injury" to court access, however, which consists of some specific "instance in which an inmate was actually denied access to the courts." Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989). Only if an actual injury is alleged does a plaintiff state a claim for which relief can be granted. See id.; see, e.g., Jenkins v. McMickens, 618 F.Supp. 1472, 1474-75 (S.D.N.Y. 1985) (complaint alleging certain documents pertaining to pending trial confiscated and not returned to conclusory to support claim of denial of access to court).

To the extent that Plaintiff seeks injunctive relief, it would appear that the issue is moot if the property was destroyed at the same time the Court received the complaint. If Plaintiff still seeks injunctive relief or other relief, the case is still dismissed with leave to amend. Plaintiff must describe in detail the legal documents that are vital for his criminal appeal and how the lack of the property has resulted in an actual injury. Plaintiff states that his appointed death penalty attorneys were assigned without his consultation. Plaintiff also disagrees with the decisions of the attorneys with respect to the fact that he is a Freemason. He must provide additional information on the contents of the legal documents and present more allegations of an actual injury.

III

Plaintiff has also requested a preliminary injunction regarding his legal property. "A preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'" Lopez v. Brewer, et al., 680 F.3d 1068, 1072 (9th Cir. 2012) (citation omitted) (emphasis in original). The standard for issuing a TRO is similar to that required for a preliminary injunction. See Los Angeles Unified Sch. Dist. v. United States Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1981) (Ferguson, J., dissenting). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of ...


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