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Harper v. Kitchen

United States District Court, D. Arizona

February 2, 2016

Gary Jerome Harper, Plaintiff,
v.
M. Kitchen, et al., Defendants.

ORDER

David G. Campbell United States District Judge

On October 19, 2015, Plaintiff Gary Jerome Harper, who is confined in the Mohave County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an incomplete Application to Proceed In Forma Pauperis. In a November 2, 2015 Order, the Court denied the deficient Application to Proceed with leave to refile. On November 12, 2015, Plaintiff filed a new Application to Proceed (Doc. 8). The Court will dismiss the Complaint with leave to amend.

Also pending before the Court is Plaintiff’s October 30, 2014 “Motion for Extension of Time” (Doc. 5) in which Plaintiff seeks a “90 day order to attempt settlement negotiations before a jury trial.” Because the Court will dismiss the Complaint, the Court will deny the Motion as moot.

I. Application to Proceed In Forma Pauperis and Filing Fee

Plaintiff’s new Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will assess an initial partial filing fee of $20.00. The remainder of the fee will be collected monthly in payments of 20% of the previous month’s income credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.

II. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 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 pleading 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) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant’s conduct. Id. at 681. . . . .

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.

III. Complaint

In his five-count Complaint, Plaintiff names the following Defendants: Sergeant M. Kitchen; Swing Shift Corporal Noba; “ADO” Vollbracht; “ADO” McCuen; Director Bishoff; and Mohave County Sheriff Jim McCabe.

In Count One, Plaintiff claims Defendant Kitchen denied him access to legal materials including complaint forms, paper, and additional paper. In Count Two, Plaintiff claims he was denied access to the courts when he was not allowed “any envelopes, paper, or forms to properly submit additional 1983’s to U.S. District Court.” In Count Three, Plaintiff alleges he was denied legal supplies “by a sergeant due to pending grievances there [at] the jail [and] pending lawsuits.” In Count Four, Plaintiff claims he was denied access to the court as well as paper and legal supplies, in violation of the Americans with Disabilities Act (ADA). In Count Five, Plaintiff claims he was “denied what [he] should have been entitled to through the ADA Title 2 integrated settings.” Plaintiff seeks an apology from each Defendant and money damages.

IV. Failure to State a Claim

A. Legal Supplies and Access to the Court-Count One and Two

The right of meaningful access to the courts prohibits officials from actively interfering with inmates’ attempts to prepare or file legal documents. Lewis v. Casey, 518 U.S. 343, 350 (1996). The right of access to the courts is only a right to bring petitions or complaints to federal court and not a right to discover such claims or even to ligate them effectively once filed with a court. Id. at 354. The right “guarantees no particular methodology but rather the conferral of a capability-the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.” Id. at 356.

As a matter of standing, for an access-to-courts claim, a plaintiff must show that he suffered an “actual injury” with respect to contemplated litigation. Id. at 349. To show actual injury with respect to contemplated litigation, the plaintiff must demonstrate that the defendants’ conduct frustrated or impeded him from bringing to court a nonfrivolous claim that he wished to present. Id. at 352-53.

“[T]he injury requirement is not satisfied by just any type of frustrated legal claim.” Id. at 354. The right of access to the courts “does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims.” Id. at 355. The nonfrivolous claim must be a direct or collateral attack on the inmate’s sentence or a challenge to the conditions of his confinement. Id. “Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.” Id. (emphasis in original).

Plaintiff’s claim that he was denied legal and writing supplies fails to state a claim for denial of access to the courts because Plaintiff has not alleged that he suffered an actual injury as the result of the denial of legal and writing supplies. Plaintiff does not allege that he was prevented from bringing to court a nonfrivolous claim attacking his sentence or challenging his conditions of confinement. Moreover, Plaintiff has filed 19 new cases with this Court from September 2015 through December 2015. The Court finds it implausible that Plaintiff has been prevented from filing claims.

B. Retaliation-Count Three

In Count Three, Plaintiff claims an unnamed sergeant denied him legal and writing supplies in retaliation for filing grievances. A viable claim of First Amendment retaliation contains five basic elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights (or that the inmate suffered more than minimal harm) and (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims requires an inmate to show (1) that the prison official acted in retaliation for the exercise of a constitutionally protected right, and (2) that the action “advanced no legitimate penological interest”). The plaintiff has the burden of demonstrating that his exercise of his First Amendment rights was a substantial or motivating factor behind the defendants’ conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).

Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id.

Plaintiff’s allegations in Count Three are too vague and conclusory to state a claim for retaliation. Plaintiff does not describe the nature of his grievances or when they were filed, nor does he allege why he believes legal and writing supplies were denied because of the grievances. Further, Plaintiff has not identified the individual responsible for denying him legal and writing supplies, nor does he allege that he suffered more than minimal harm. Accordingly, Plaintiff has failed to state a claim in Count Three.

C. ADA-Counts Four and Five

Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. As used in this provision, a “public entity” is defined in part as “(A)ny State or local government; [or] (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government . . . .” 42 U.S.C. § 12131. To state an ADA claim, a plaintiff must first demonstrate that he:

(1) is a handicapped person; (2) that he is otherwise qualified; and that [prison officials] actions either (3) excluded his participation in or denied him the benefits of a service, program, or activity; or (4) otherwise subjected him to discrimination on the basis of his physical handicap.

Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996). The ADA requires that the impairment substantially limit one or more of the individual's major life activities. 42 U.S.C. § 12112(a). “Major life activities” include “functions such as caring for oneself, performing manual tasks, walking, seeing, speaking, breathing, learning and working.” 29 C.F.R. § 1630.2(i).

Plaintiff has not alleged that he is a handicapped person and that he is excluded from participation in or denied the benefits of a service, program, or activity, on the basis of his physical handicap. Accordingly, Plaintiff has failed to state a claim under the ADA in Counts Four or Five of the Complaint.

V. Leave to Amend

For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.

Plaintiff must clearly designate on the face of the document that it is the “First Amended Complaint.” The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.

In each count, Plaintiff must write short, plain statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of that Defendant’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to state a claim. Conclusory allegations that a Defendant or group of Defendants has violated a constitutional right are not acceptable and will be dismissed.

A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is ...


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