(PC) Segura v. Felker et al, No. 2:2008cv02137 - Document 26 (E.D. Cal. 2010)
Court Description: ORDER granting in part and denying in part 22 Motion to Dismiss signed by Circuit Judge Susan P. Graber on 2/1/10. (Kaminski, H)
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(PC) Segura v. Felker et al Doc. 26 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LORENZO SEGURA, 12 Plaintiff, 13 vs. 14 T. FELKER, et al., 15 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFF'S COMPLAINT Defendants. 16 17 No. CIV S-08-2137-SPG (PC) / I. Background 18 A. Procedural History 19 On September 11, 2008, Plaintiff Lorenzo Segura, a state prisoner incarcerated at 20 California's High Desert Prison, proceeding without counsel, filed this civil rights action under 42 21 U.S.C. § 1983. Clerk’s Record, Docket No. 1 ("Doc." 1.). Plaintiff was confined at the time of 22 the events giving rise to the complaint. On May 13, 2009, this court determined that the 23 complaint stated cognizable claims for relief "stemming from allegations that Defendants failed to 24 provide Plaintiff access to legal materials and destroyed Plaintiff’s personal property, including 25 legal materials, in retaliation for his using administrative grievance procedures, in violation of his 26 First Amendment right to free speech and the Fourteenth Amendment’s prohibition against 1 Dockets.Justia.com 1 deprivation of life, liberty, or property without due process of law." (Doc. 16.) The complaint 2 named Defendants Warden T. Felker, Correctional Officer ("C/O") McGuire, C/O Sanchez, C/O 3 Green, C/O Fannon, Sgt. Ingwerson, Sgt. Medonca, and Sgt. Carrera. (Doc. 1.) 4 5 On September 24, 2009, all Defendants filed a motion to dismiss Plaintiff's complaint. (Doc. 22.) On November 4, 2009, Plaintiff filed an opposition. (Doc. 25.) 6 B. Summary of Alleged Facts 7 Plaintiff alleges that Defendants have denied him access to legal materials in an unspecified 8 ongoing case. On August 30, 2006, Plaintiff asked Defendant Medonca for access to his legal 9 materials. Defendant Medonca told Plaintiff to ask Defendant McGuire. On September 7, 2006, 10 Plaintiff asked Defendant McGuire for his legal materials. Defendant McGuire promised to return 11 later with his materials, but did not return. On October 11, 2006, Plaintiff asked C/O Micone for 12 access to his legal materials. C/O Micone told Plaintiff to ask Defendants McGuire and Sanchez. 13 On October 20, 2006, Defendant Sanchez and C/O Micone visited Plaintiff’s cell. Defendant 14 Sanchez told Plaintiff that he would not bring Plaintiff his legal materials. On November 22, 15 2006, Plaintiff asked Defendant McGuire. Defendant McGuire told Plaintiff to ask Defendant 16 Medonca. On January 16, 2006, Plaintiff again asked Defendant McGuire, who responded that 17 Plaintiff would not be getting anything so stop asking. Defendant McGuire called Plaintiff a "cry 18 baby." 19 Plaintiff alleges that his personal property has been destroyed. Plaintiff alleges that all of 20 his legal mail has been opened outside his presence and read in violation of California law. 21 Plaintiff alleges that Defendants’ conduct constitutes retaliation. 22 II. Analysis 23 A. Legal Standard 24 Federal Rule of Civil Procedure 12(b)(6) requires dismissal of a complaint "if it is clear 25 that no relief could be granted under any set of facts that could be proved consistent with the 26 allegations." Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In considering a Rule 2 1 12(b)(6) motion, the court must accept as true the factual allegations of the complaint. Erickson 2 v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). In addition, the pleadings of a litigant proceeding 3 without counsel should be construed liberally. Id. However, "[t]hreadbare recitals of the 4 elements of a cause of action, supported by mere conclusory statements, do not suffice." 5 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A claim must have facial plausibility to survive a 6 motion to dismiss, and facial plausibility arises when "the plaintiff pleads factual content that 7 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 8 alleged." Id. 9 When ruling on a motion to dismiss, the court generally may not consider material outside 10 the complaint. Friedman v. Boucher, 580 F.3d 847, 852 n.3 (9th Cir. 2009). But the court may 11 consider materials outside the complaint "[i]n deciding a motion to dismiss for failure to exhaust 12 nonjudicial remedies." Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). 13 14 15 16 17 B. Motion to Dismiss 1. Exhaustion of Nonjudicial Remedies A prisoner plaintiff must exhaust his nonjudicial remedies before filing a § 1983 complaint in federal court. Porter v. Nussle, 534 U.S. 516, 524 (2002). In their motion to dismiss, Defendants assert that Plaintiff exhausted only two claims: his 18 "access to the courts" claim and his "deprivation of personal property" claim. Defendants 19 attached documentation supporting that assertion. In his response, Plaintiff states that he never 20 intended to raise any other claims in his complaint. To the contrary, "[t]he only claims that are 21 exhausted and presented in the complaint, (claims for relief) are [Plaintiff’s] property, and access 22 to court claim [which are] clear violation[s] of [P]laintiff’s due process rights." (Doc. 25, at 4.) 23 This court agrees with the parties that Plaintiff exhausted only his "access to the courts" claim and 24 his "deprivation of personal property" claim. 25 26 Accordingly, this court GRANTS Defendants’ motion to dismiss Plaintiff’s retaliation claim and "opening of legal mail" claim and orders that those claims be dismissed as to all 3 1 2 3 Defendants without leave to amend. 2. Access to the Courts Claim Inmates have a constitutional right to access the courts to attack their sentences and to 4 challenge the conditions of their confinement. Lewis v. Casey, 518 U.S. 343, 354-55 (1996). An 5 inmate alleging an interference with access to the courts must show an actual injury. Id. at 349- 6 51. To meet that requirement, an inmate must allege that "a nonfrivolous legal claim had been 7 frustrated or was being impeded." Id. at 353 (footnote omitted). "It follows that the underlying 8 cause of action, whether anticipated or lost, is an element that must be described in the 9 complaint." Christopher v. Harbury, 536 U.S. 403, 415 (2002). "It follows, too, that when the 10 access claim . . . looks backward, the complaint must identify a remedy that may be awarded as 11 recompense but not otherwise available in some suit that may yet be brought." Id. 12 Here, Plaintiff’s complaint asserts that the relevant legal materials pertain to an "ongoing 13 case," Doc. 1, at 5, para. 16, or an "active case," id. at 5, para. 20, or a "criminal case pending in 14 the district court," id. at 6, para. 22. Plaintiff’s complaint does not elaborate on the nature of the 15 underlying cause of action. Plaintiff’s complaint fails to identify the underlying cause of action 16 with the specificity required by the Supreme Court in Christopher. 17 Plaintiff’s complaint states that the denial of legal materials "caused Plaintiff’s petition to 18 be dismissed." But Plaintiff does not explain the nature of the "petition" or how the deprivation of 19 the materials "caused" the dismissal of the petition. Nor does the complaint "identify a remedy 20 that may be awarded as recompense but not otherwise available in some suit that may yet be 21 brought." Christopher, 536 U.S. at 415. Plaintiff’s complaint fails to identify the actual injury 22 suffered by Plaintiff as required by the Supreme Court in Lewis and Christopher. 23 For the reasons stated above, this court concludes that Plaintiff has failed to state a claim 24 for denial of access to the courts. Accordingly, this court GRANTS Defendants’ motion to 25 dismiss Plaintiff’s "access to the courts" claim and orders that the claim be dismissed with leave to 26 amend within 60 days. 4 1 3. Deprivation of Personal Property Claim 2 An authorized, intentional deprivation of property is actionable under the Due Process 3 Clause. Hudson v. Palmer, 468 U.S. 517, 532 (1984). An authorized deprivation occurs when an 4 employee of the State carries out established procedures, regulations, or statutes. Piatt v. 5 MacDougall, 773 F.2d 1032, 1036 (9th Cir. 1985) (en banc). When the deprivation is not carried 6 out pursuant to established procedures, regulations, or statutes, "a negligent or intentional 7 deprivation of a prisoner’s property fails to state a claim under section 1983 if the state has an 8 adequate post deprivation remedy." Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per 9 curiam). "California law provides an adequate post-deprivation remedy for any property 10 deprivations." Id. 816-17. 11 Here, Plaintiff’s complaint alleges that Defendants’ conduct was carried out pursuant to 12 "[D]efendants’ own rules and regulations, what their mind told them to do. They failed to follow 13 the basic laid down procedure of CDCR [California Department of Corrections and 14 Rehabilitation]." (Doc. 1, at 10, para. 46.) Plaintiff’s opposition to the motion to dismiss repeats 15 that allegation verbatim. Because Plaintiff’s complaint does not allege that any Defendant was 16 acting pursuant to established procedures, regulations, or statutes, this court concludes that 17 Plaintiff has failed to state a claim for deprivation of personal property. 18 Accordingly, this court GRANTS Defendants’ motion to dismiss Plaintiff’s "deprivation of 19 personal property" claim and orders that the claim be dismissed with leave to amend within 60 20 days. 21 22 4. Defendants Felker, Green, Fannon, Ingwerson, and Carrera Plaintiff’s complaint identifies Defendants Felker, Green, Fannon, Ingwerson, and Carrera 23 as employees of the prison but fails to allege any personal actions by those Defendants. 24 Accordingly, as an alternative ground, this court GRANTS Defendants’ motion to dismiss 25 Plaintiff’s complaint in its entirety with respect to Defendants Felker, Green, Fannon, Ingwerson, 26 and Carrera and orders that the claims be dismissed with leave to amend within 60 days. 5 1 5. Injunctive Relief and Defendants in their Official Capacity 2 In the alternative, Defendants seek an order dismissing the complaint as it pertains to 3 injunctive relief and an order dismissing all Defendants in their official capacities. As discussed 4 above, Plaintiff’s complaint is dismissed in its entirety, with leave to amend in certain regards. 5 This court therefore finds it unnecessary at this time to address Defendants’ motion concerning 6 injunctive relief and official capacities. 7 Accordingly, this court DENIES as moot Defendants’ motion to dismiss as it pertains to 8 injunctive relief and as it pertains to Defendants acting in their official capacities. This denial is 9 without prejudice to Defendants’ raising the identical arguments with respect to an amended 10 complaint. 11 III. Conclusion and Order 12 For the foregoing reasons, the court hereby: 13 1. GRANTS the motions to dismiss Plaintiff’s retaliation and "opening of legal 14 mail" claims as to all Defendants with prejudice; 15 16 2. GRANTS, with leave to amend within 60 days, the motions to dismiss Plaintiff’s "access to the court" claim and Plaintiff’s "deprivation of personal property" claim; 17 3. GRANTS, with leave to amend within 60 days, the motion to dismiss the 18 complaint in its entirety against Defendants Felker, Green, Fannon, and Ingwerson, and Carrera; 19 and 20 21 22 23 4. DENIES as moot the motion to dismiss concerning injunctive relief and official capacities. IT IS SO ORDERED. DATED: February 1, 2010 24 /s/ Susan P. Graber 25 UNITED STATES CIRCUIT JUDGE 26 6
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