Opinion

(PC) Brown v. Kishbaugh

Court
District Court, E.D. California
Filed
Mar 5, 2021
Cited by
0 cases
Authority
More cited than 17.6%

a person subjects another to the deprivation of a 10 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 11 legally required to do that causes the alleged deprivation

How later courts described this case

  • a person subjects another to the deprivation of a 10 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 11 legally required to do that causes the alleged deprivation
  • the “‘amended complaint supersedes the original, the latter 24 being treated thereafter as non-existent.’”

Written by the judges who cited it.

The opinion

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 MARK ANTHONY BROWN, No. 2:21-cv-0149-EFB P

12 Plaintiff,

13 v. ORDER

14 C. KISHBAUGH, et al.,

15 Defendants.

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17 Plaintiff, a state prisoner proceeding without counsel in this action brought pursuant to 42

18 U.S.C. § 1983, has filed an application to proceed in forma pauperis. ECF No. 2. As discussed

19 below, his application is granted and the court will screen the complaint.

20 Application to Proceed in Forma Pauperis

21 The court has reviewed plaintiff’s application and finds that it makes the showing required

22 by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency

23 having custody of plaintiff to collect and forward the appropriate monthly payments for the filing

24 fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

25 Screening Standards

26 Federal courts must engage in a preliminary screening of cases in which prisoners seek

27 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

28 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

1 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

2 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

3 relief.” Id. § 1915A(b).

4 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

5 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

6 plain statement of the claim showing that the pleader is entitled to relief, in order to give the

7 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

8 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

9 While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

10 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

11 U.S. 662, 679 (2009).

12 To avoid dismissal for failure to state a claim a complaint must contain more than “naked

13 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

14 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

15 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

16 678.

17 Furthermore, a claim upon which the court can grant relief must have facial plausibility.

18 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

19 content that allows the court to draw the reasonable inference that the defendant is liable for the

20 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

21 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

22 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

23 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

24 Screening Order

25 Plaintiff’s complaint (ECF No. 1) alleges the following: On August 23, 2019, defendant

26 C. Kishbaugh granted plaintiff priority legal user (“PLU”) status. Kishbaugh, however, failed to

27 honor plaintiff’s PLU status through the following tactics: 1) scheduling library time to conflict

28 with plaintiff’s yard time; 2) denying plaintiff’s requests for specific legal materials; 3) refusing

1 to ducat plaintiff for the library; 4) ignoring plaintiff’s requests for library access; and 5) in one

2 instance, allowing plaintiff only 45 minutes of research time instead of the two hours plaintiff was

3 due. Plaintiff also alleges that on September 13, 2019, defendant Hutchison refused to give

4 plaintiff legal documents and materials that were relevant to plaintiff’s ongoing litigation, and

5 that on October 13, 2019, defendant Munoz confiscated plaintiff’s legal property and refused to

6 return it. As discussed below, plaintiff’s allegations cannot survive screening.

7 The U.S. Court of Appeals for the Ninth Circuit has held it was impermissible for prison

8 authorities to force an inmate to choose between use of the law library and out-of-cell exercise for

9 eight months. Hebbe v. Pliler, 611 F.3d 1202, 1207-08 (9th Cir. 2010). In this case, however,

10 plaintiff has not specified the extent to which he was made to sacrifice either exercise time or

11 library time. Due to the paucity of facts alleged, the court cannot determine whether plaintiff was

12 forced him to choose between his constitutional right to exercise and his constitutional right of

13 access to the courts. On such vague and conclusory allegations, the court cannot find that

14 plaintiff has stated a cognizable claim.

15 Should plaintiff intend to pursue a claim based on the denial of yard time in an amended

16 complaint, the court notes that he must allege (1) that conditions of his imprisonment objectively

17 posed a “substantial risk of serious harm” depriving him of basic necessities and (2) that prison

18 officials subjectively acted with “deliberate indifference” to his health or safety. Farmer v.

19 Brennan, 511 U.S. 825, 832 (1994).

20 To the extent plaintiff intends to pursue a First Amendment claim based on denial of

21 access to the courts, plaintiff must allege specific facts showing that a defendant actually injured

22 his litigation efforts, in that his or her conduct hindered plaintiff’s efforts to bring, or caused him

23 to lose, an actionable claim challenging his criminal sentence or conditions of confinement. See

24 Lewis v. Casey, 518 U.S. 343, 351 (1996); Christopher v. Harbury, 536 U.S. 403, 412-15 (2002).

25 In his complaint, plaintiff merely alleges he had an unspecified motions deadline and a statutory

26 time limit to file a federal habeas petition. He does not allege anything further about the litigation

27 with a motions deadline or the viability of any federal habeas petition. Plaintiff’s generic

28 allegations about deadlines and limited library access fail to demonstrate that any defendant

1 caused him to lose an actionable claim or that his constitutional right of access to the courts was

2 otherwise impaired. Indeed, there is no “abstract, freestanding right to a law library or legal

3 assistance.” Lewis v. Casey, 518 U.S. 343, 350-51 (1996).

4 Leave to Amend

5 Plaintiff’s complaint is dismissed with leave to amend. If plaintiff chooses to file an

6 amended complaint it should observe the following:

7 Any amended complaint must identify as a defendant only persons who personally

8 participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

9 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

10 constitutional right if he does an act, participates in another’s act or omits to perform an act he is

11 legally required to do that causes the alleged deprivation). The complaint should also describe,

12 in sufficient detail, how each defendant personally violated or participated in the violation of his

13 rights. The court will not infer the existence of allegations that have not been explicitly set forth

14 in the amended complaint.

15 The amended complaint must contain a caption including the names of all defendants.

16 Fed. R. Civ. P. 10(a).

17 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See

18 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

19 Any amended complaint must be written or typed so that it so that it is complete in itself

20 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

21 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

22 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

23 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

24 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

25 1967)).

26 Finally, the court notes that any amended complaint should be as concise as possible in

27 fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of

28 procedural or factual background which has no bearing on his legal claims.

1 Conclusion

2 Accordingly, IT IS ORDERED that:

3 1. Plaintiffs request to proceed in forma pauperis (ECF No. 2) is GRANTED;

4 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in

5 accordance with the notice to the California Department of Corrections and

6 Rehabilitation filed concurrently herewith;

7 3. Plaintiff's complaint (ECF No. 1) is DISMISSED with leave to amend within 30 days

8 from the date of service of this order; and

9 4. Failure to comply with this order may result in dismissal of this action for the reasons

10 stated herein.

11 | DATED: March 5, 2021. Eg Vien □ i hf LM A

12 EDMUND F. BRENNAN

3 UNITED STATES MAGISTRATE JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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