United States District Court, N.D. California
ORDER OF SERVICE RE: DKT. NO. 14
DONATO, UNITED STATES DISTRICT JUDGE.
a state prisoner, has filed a pro se civil rights complaint
under 42 U.S.C. § 1983. His amended complaint was
dismissed with leave to amend and he has filed a second
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). In its review, the Court must identify any
cognizable claims, and dismiss any claims which are
frivolous, malicious, fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. Id. at 1915A(b)(1), (2).
Pro se pleadings must be liberally construed. Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Although a complaint “does
not need detailed factual allegations, . . . a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. . . . Factual
allegations must be enough to raise a right to relief above
the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A
complaint must proffer “enough facts to state a claim
to relief that is plausible on its face.” Id.
at 570. The United States Supreme Court has explained the
“plausible on its face” standard of
Twombly: “While legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Ashcroft v. Iqbal, 556 U.S. 662,
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that: (1) a right secured by the Constitution or laws
of the United States was violated, and (2) the alleged
deprivation was committed by a person acting under the color
of state law. West v. Atkins, 487 U.S. 42, 48
alleges that his legal documents were confiscated and then
discarded. 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).
To establish a claim for any violation of the right of access
to the courts, the prisoner must prove that there was an
inadequacy in the prison's legal access program that
caused him an actual injury. See Lewis, 518 U.S. at
350-55. To prove an actual injury, the prisoner must show
that the inadequacy in the prison's program hindered his
efforts to pursue a non-frivolous claim concerning his
conviction or conditions of confinement. See id. at
354-55. Destruction or confiscation of legal work may violate
an inmate's right to access to the courts, see
Elliott v. Terry, 873 F.2d 1201, 1202 (9th Cir. 1989),
if plaintiff can establish actual injury, see Sands v.
Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989).
a search of plaintiff's cell, correctional officers
confiscated a pillow case that was full of papers and had a
rope tied to the top. Correctional officers believed it was a
manufactured weight bag for exercising which was not
permitted. Plaintiff states that the bag contained his legal
documents. The pillow case and legal documents were not
returned and appear to have been discarded. Plaintiff states
that he was hindered in his ability to challenge his
conviction. Defendant Velazquez conducted the search and
defendants Grant and Buchannan decided to hold onto the
papers after they were informed that they were legal papers.
These allegations are sufficient to proceed against these
alleges that defendants Lants and Wagner did not return the
legal papers. However, these defendants did not return the
papers because defendant Buchannan instructed that the papers
should not be returned. Because Lants and Wagner were not
involved in the confiscation or decision to retain the legal
papers they are dismissed from this action with prejudice.
Plaintiff alleges that defendants Schrag and Ducart denied
plaintiff's inmate appeal regarding the legal papers.
However, there is no constitutional right to a prison
administrative appeal or grievance system. See Ramirez v.
Galaza, 334 F.3d 850, 860 (9th Cir. 2003);
Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).
These defendants are dismissed with prejudice because
plaintiff has failed to state a cognizable claim regarding
the denied inmate appeals.
has also requested the appointment of counsel. The Ninth
Circuit has held that a district court may ask counsel to
represent an indigent litigant only in “exceptional
circumstances, ” the determination of which requires an
evaluation of both (1) the likelihood of success on the
merits, and (2) the ability of the plaintiff to articulate
his claims pro se in light of the complexity of the legal
issues involved. Terrell v. Brewer, 935 F.2d 1015,
1017 (9th Cir. 1991). Plaintiff appears able to present his
claims adequately, and the issues are not complex, therefore
the request is denied.
motion to appoint counsel (Docket ...