Ontiveros v. California Department of Corrections and Rehabilitation

         ORDER GRANTING PLAINTIFF'S MOTIONS TO AMEND; AND SCREENING ORDER ORDER FOR PLAINTIFF TO: (1) FILE A THIRD AMENDED COMPLAINT; OR (2) NOTIFY THE COURT THAT HE WISHES TO STAND ON HIS SECOND AMENDED COMPLAINT, SUBJECT TO THIS COURT ISSUING FINDINGS AND RECOMMENDATIONS TO A DISTRICT JUDGE CONSISTENT WITH THIS ORDER (ECF NOS. 7, 8, 11, 12)

         I. BACKGROUND

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis and seeking relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this Court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff originally filed this suit on April 22, 2019. (ECF No. 1.) Plaintiff then filed a motion to amend his complaint, along with a first amended complaint on May 17, 2019. (ECF Nos. 7 & 8.) Plaintiff then filed another motion to amend, as well as a second amended complaint, on May 31, 2019. (ECF Nos. 11 & 12.)

         On November 22, 2019, this case was transferred from the Sacramento Division of the Eastern District of California to the Fresno Division of the Eastern District of California. (ECF No. 24.)

         For the reasons discussed herein, the court will grant Plaintiff's motions for leave to amend (ECF Nos. 7 & 11.) and treats the second amended complaint as the operative complaint.

         Finally, upon screening Plaintiff's second amended complaint, the Court finds that it fails to state a claim against any of the named Defendants. Plaintiff may file a third amended complaint based on the legal standards in this order if he believes that additional facts would state additional claims. If Plaintiff files a third amended complaint, the court will screen that complaint in due course. Alternatively, Plaintiff may file a statement with the court that he wishes to stand on the Second Amended Complaint, and have it reviewed by a district judge, in which case the court will issue findings and recommendations to a district judge consistent with this order.

         II. MOTIONS TO AMEND (ECF Nos. 7 & 11)

         Before the Court could screen Plaintiff's complaint filed on April 22, 2019, Plaintiff filed a motion to amend along with a first amended complaint. See (ECF Nos. 7 & 8.) In the same month, Plaintiff filed another motion to amend his complaint along with a second amended complaint. (ECF Nos. 11 & 12.) Since the motions to amend were filed close in time to one another and before service was ordered or a responsive pleading was filed, the court will construe Plaintiff's motions to amend as a single attempt to amend his complaint. See Fed.R.Civ.P. 15(a)(1) (amending as a matter of course). So construed, Plaintiff's motions to amend will be granted and the court will deem the second amended complaint filed on May 31, 2019, as the operative pleading before the Court. See (ECF No. 12.)

         III. 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 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).

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

         In order to avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions, ” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, “[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). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

         IV. ALLEGATIONS IN THE COMPLAINT

         In his second amended complaint, Plaintiff alleges that while an inmate at California State Prison-Corcoran he was denied access to the law library and paging service every week between October 3, 2018 and January 1, 2019. (ECF No. 12 at 5-11.) Access to the law library was necessary in order to work on state habeas corpus petitions as well as various state and federal civil actions. Id. Plaintiff alleges that such denial of access violated his rights under the First, Fifth, and Fourteenth Amendments to the Federal Constitution as well as various ...