Ireland v. Marsh
Filing
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ORDER signed by Chief Judge Robert H. Whaley on 5/17/10 ORDERING that Plaintiff's claims against Rod Marsh and Gary Stanton re 1 Complaint are DISMISSED, with leave to renew. Plaintiff shall file an Amended Complaint, within 30 dyas from the date this order is filed. (Mena-Sanchez, L)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ROD IRELAND, Plaintiff, v. RON MARSH and SOLANO COUNTY JAIL SHERIFF GARY STANTON, Defendants. NO. CV-08-2628-RHW ORDER DISMISSING COMPLAINT WITH LEAVE TO RENEW
Plaintiff Rod Ireland is proceeding pro se. He is an inmate at Solano County Jail, Fairfield, California.1 On November 4, 2008, Plaintiff filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging insufficiency of legal assistance. PRELIMINARY REVIEW Pursuant to 28 U.S.C. § 1915(A), this court must conduct a preliminary review of the complaint to identify any cognizable claims, and to dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. § 1915(A)(b)(1),(2). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two
On March 27, 2009, Plaintiff filed a notice that he was now housed at
North Kern State Prison, Delano, California (Ct. Rec. 7). ORDER DISMISSING COMPLAINT WITH LEAVE TO RENEW ~ 1
1 essential elements: (1) that a violation of a right secured by the Constitution or 2 laws of the United States was violated, and (2) that the alleged deprivation was 3 committed by a person acting under the color of state law. 4 In his Complaint, Plaintiff alleges that the Solano County Jail has no law 5 library for pro pers to research the law and has no paralegals with which to 6 consult. He alleges that he has been denied access to the court because his written 7 instruments have been rejected, denied, and dismissed. 8 "[T]he fundamental constitutional right of access to the courts requires 9 prison authorities to assist inmates in the preparation and filing of meaningful 10 legal papers by providing prisoners with adequate law libraries or adequate 11 assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817, 828 12 (1977). In Lewis v. Casey, the Supreme Court noted that Bounds did not create an 13 abstract, freestanding right to a law library or legal assistance. 518 U.S. 343, 351 14 (1996). Thus, an inmate cannot establish relevant actual injury by alleging that his 15 prison's law library or legal assistance program is subpar in some theoretical 16 sense. Id. Rather, to properly plead a violation of the right to access to the courts, 17 a prisoner must allege facts sufficient to show that: (1) a nonfrivolous legal attack 18 on his conviction, sentence, or conditions of confinement has been frustrated or 19 impeded, and (2) he has suffered an actual injury as a result. Id. at 353-55. An 20 "actual injury" is defined as "actual prejudice with respect to contemplated or 21 existing litigation, such as the inability to meet a filing deadline or to present a 22 claim." Id. at 348. 23 In his complaint, Plaintiff refers to CV-08-2102-DAD and implies that his 24 written instruments were denied and dismissed because the forms provided at the 25 jail were incomplete or outdated. In that case, Plaintiff was provided forms to use 26 from the Court. Plaintiff's Second Amended Complaint was dismissednot 27 because he used an incorrect or outdated formrather, it was dismissed for failure 28 ORDER DISMISSING COMPLAINT WITH LEAVE TO RENEW ~ 2
1 to state a claim.2 Plaintiff has not alleged sufficient facts to support a claim that he 2 suffered actual injury. Consequently, Plaintiff has not alleged sufficient facts to 3 state a claim for denial of access to the Courts. 4 District courts must afford pro se litigants the opportunity to amend to 5 correct any deficiency in their complaints. Lopez v. Smith, 203 F.3d 1122, 1127 6 (9th Cir. 2000). Accordingly, the Court grants plaintiff leave to file an amended 7 complaint within thirty (30) days of the date this order is filed, to address the 8 deficiencies set forth above. In the alternative, within thirty (30) days of the date 9 this order is filed, plaintiff may file a notice with the court stating that he intends 10 to proceed with the cognizable claims in the original complaint. Because an 11 amended complaint completely replaces the original complaint, plaintiff must 12 include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 13 1258, 1262 (9th Cir.1992). 14 15 17 Accordingly, IT IS HEREBY ORDERED: 1. Plaintiff's claims against Rod Marsh and Gary Stanton are 2. Plaintiff shall file an amended complaint within thirty (30) days from
16 DISMISSED, with leave to renew. 18 the date this order is filed. In the alternative, within thirty (30) days from the date 19 this order is filed, Plaintiff may file a notice with the court stating that he intends 20 to proceed with the cognizable claims in the original complaint. Failure to do so 21 could result in the dismissal of this action. 22 An amended complaint must include the caption and civil case number used 23 in this order (CV 08-2628-RHW ) and the words "AMENDED COMPLAINT" on 24 the first page. Because an amended complaint completely replaces the original 25 complaint, Plaintiff must include in it all the claims he wishes to present. See 26 27 A court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to 28 matters at issue." United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992). ORDER DISMISSING COMPLAINT WITH LEAVE TO RENEW ~ 3
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1 Ferdik, 963 F.2d at 1262. Plaintiff may not incorporate material from the original 2 complaint, such as supporting documentation or exhibits, by reference. Plaintiff 3 must include all of his claims, including the cognizable claims set forth above, in 4 the amended complaint. Failure to file an amended complaint or file a notice with 5 the court in compliance with this order within the designated time will result in the 6 court proceeding with the cognizable claims in the original complaint as stated in 7 this order. 8 Plaintiff is advised that an amended complaint supersedes the original 9 complaint. "[A] plaintiff waives all causes of action alleged in the original 10 complaint which are not alleged in the amended complaint." London v. Coopers 11 & Lybrand, 644 F.2d 811, 814 (9th Cir.1981). Defendants not named in an 12 amended complaint are no longer defendants. See Ferdik, 963 F.2d at 1262. 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DISMISSING COMPLAINT WITH LEAVE TO RENEW ~ 4
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IT IS SO ORDERED. The District Court Executive is directed to enter DATED this 17th day of May, 2010. s/Robert H. Whaley ROBERT H. WHALEY United States District Judge
14 this Order and forward copies to Plaintiff.
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