The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 CHRISTOPHER ALLEN CAIN, No. 2:21-cv-1327-EFB P
12 Plaintiff,
13 v. ORDER AND FINDINGS AND
RECOMMENDATIONS
14 K. BROWN, et al.,
15 Defendants.
16
17 Plaintiff is a federal prisoner proceeding without counsel in an action brought for alleged
18 violations of his civil rights. After a dismissal by the court, plaintiff has filed an amended
19 complaint, which the court must screen. ECF Nos. 11 & 13. Plaintiff also requests the
20 appointment of counsel. ECF No. 9.
21 Request for Appointment of Counsel
22 District courts lack authority to require counsel to represent indigent prisoners in section
23 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional
24 circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See
25 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
26 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional
27 circumstances” exist, the court must consider the likelihood of success on the merits as well as the
28 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues
1 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors,
2 the court finds there are no exceptional circumstances in this case.
3 Screening Order
4 Congress mandates that district courts engage in a preliminary screening of cases in which
5 prisoners seek redress from a governmental entity or officer or employee of a governmental
6 entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the
7 complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to
8 state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who
9 is immune from such relief.” Id. § 1915A(b).
10 The court analyzed plaintiff’s original complaint pursuant to § 1915A as follows:
11
Plaintiff alleges that between October 13, 2020 and November 5, 2020,
12 defendants Thompson, Brown, Boulware, Shigeyasu, and Alatary denied him
access to the court. ECF No. 1 at 9. More specifically, plaintiff claims that they
13 denied him paper, a pen, and envelopes “during the critical stages of [his] appeal
process.” Id. at 8. They allegedly told plaintiff he could receive mail but could
14 not send mail out. Id. According to the complaint, defendants’ actions “caused
adverse decision to be ruled against [plaintiff] by the United States District Court
15
of Eastern Washington on [plaintiff’s] post-conviction appeal.” Id.
16
Plaintiff’s claim that defendants’ conduct caused the district court in
17 Washington to issue an adverse ruling is not supported by that court’s criminal
docket in United States v. Cain, No. 2:16-cv-0176-RMP-1 (E.D. Wash.), of which
18 this court takes judicial notice.1 On March 6, 2019, the court issued a resentencing
judgment. Id., at ECF No. 190. On the same day, plaintiff filed a notice of appeal.
19
Id., ECF No. 192. The U.S. Court of Appeals for the Ninth Circuit affirmed the
20 decision of the district court and issued its mandate on April 27, 2020. ECF Nos.
201, 202. On May 7, 2020, a federal defender filed a notice of appearance on
21 behalf of plaintiff. ECF No. 203. Nothing further has been filed by either plaintiff
or the court. Thus, the court has not issued any adverse ruling to plaintiff as a
22 result of defendants’ alleged conduct in October and November of 2020.
23
If plaintiff wishes to assert a First Amendment claim based on denial of
24 access to the courts, he must plead specific facts showing that defendants actually
injured his litigation efforts. See Lewis v. Casey, 518 U.S. 343, 351 (1996);
25
26 /////
27
1 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
28 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
1 Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). In an abundance of
caution, the court will afford plaintiff the opportunity to file an amended
2
complaint.
3
4 ECF No. 5 at 3.
In the amended complaint, plaintiff clarifies that his injury for purposes of an access to the
5
courts claim is that he was unable to respond to an October 26, 2020 letter from an attorney
6
discussing plaintiff’s post-conviction options and the possibility of representing plaintiff. ECF
7
No. 10 at 3. Plaintiff also alleges that he was unable to file an administrative grievance. Id.
8
The allegations in the amended complaint do not cure the deficiencies identified in the
9
court’s prior screening order. Plaintiff’s inability to respond to a letter from an attorney, who
10
plaintiff had not retained, is not an “actual injury” for purposes of an access to courts claim. An
11
actual injury arises where a defendant’s conduct hinders plaintiff’s efforts to bring, or causes him
12
to lose, an actionable claim challenging his criminal sentence or conditions of confinement. See
13
Lewis v. Casey, 518 U.S. 343, 351 (1996); Christopher v. Harbury, 536 U.S. 403, 412-15 (2002).
14
Upon further review of plaintiff’s criminal proceedings in Washington, it appears that there was
15
an adverse ruling against plaintiff.2 That ruling, however, was not caused by plaintiff’s inability
16
to respond to the October 26, 2020 letter from an attorney. See United States v. Cain, No. 2:16-
17
cv-0069-RMP-1 (Apr. 5, 2021, E.D. Wash.) (denying motion on the merits). Further, the
18
improper handling of administrative appeals does not violate due process, as there are no
19
constitutional requirements regarding how a grievance system is operated. See Ramirez v. Galaza,
20
334 F.3d 850, 860 (9th Cir. 2003); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).
21
For these reasons, the amended complaint must be dismissed for failure to state a claim
22
upon which relief could be granted.
23
The court has afforded plaintiff a chance to amend his complaint, yet he is unable to state
24
a claim upon which relief could be granted. Consequently, it declines to offer a further
25
26
2 The court takes judicial notice of a second criminal docket in the United States District
27 Court of Washington, United States v. Cain, No. 2:16-cv-0069-RMP-1 (E.D. Wash.), as it appears
that the decision issued by the Ninth Circuit covered two cases in which plaintiff was a criminal
28 defendant.
1 || opportunity to amend. See Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990)
2 | (futility of amendment and previous opportunities to amend are factors to assess in weighing the
3 || propriety of granting leave to amend).
4 Conclusion
5 Accordingly, it is ORDERED that:
6 1. Plaintiff's request for the appoint of counsel (ECF No. 9) is DENIED; and
7 2. The Clerk of Court shall randomly assign a United States District Judge to this case.
8 Further, it is RECOMMENDED that plaintiff’s amended complaint (ECF No. 10) be
9 || DISMISSED without leave to amend for failure to state a cognizable claim and the Clerk be
10 || directed to close the case.
11 These findings and recommendations are submitted to the United States District Judge
12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days
13 || after being served with these findings and recommendations, any party may file written
14 || objections with the court and serve a copy on all parties. Such a document should be captioned
15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
16 || within the specified time may waive the right to appeal the District Court’s order. Turner v.
17 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).
18 || Dated: January 19, 2022.
19 tid. HDeMA
20 EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE
21
22
23
24
25
26
27
28