Johnson v. Corrections Corporation of America et al, No. 3:2014cv00041 - Document 4 (S.D. Cal. 2014)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis, and sua sponte dismissing complaint without prejudice for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff is GRANTED forty five (45) days leave from the date this Order is filed in which to reopen the case by filing a Amended Complaint. Should Plaintiff fail to file a Amended Complaint within the time provided, this civil action shall remain closed and case shall remain dismissed without prejudice based on Plaintiff's failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B). Signed by Judge Larry Alan Burns on 6/23/14. (All non-registered users served via U.S. Mail Service)(kas)
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Johnson v. Corrections Corporation of America et al Doc. 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 BERTRAM COLIN JOHNSON, Register #A038713419, Plaintiff, 13 14 15 16 17 18 19 Civil No. 14cv0041 LAB (WVG) ORDER: (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS (ECF Doc. No. 2) vs. CORRECTIONS CORPORATION OF AMERICA; FREDRICK LAWRENCE; JOHN WEAVER; BEVERLY SORIA; K. PERRY; MARIA ORRELL; KEVIN FAY, Defendants. AND (2) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 20 21 Bertram Colin Johnson (“Plaintiff”), an immigration detainee at the Etowah 22 County Jail in Gadsden, Alabama, has filed a civil rights complaint pursuant to 42 U.S.C. 23 § 1983 (ECF Doc. No. 1), together with a Motion to Proceed In Forma Pauperis (“IFP”) 24 pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2). 25 Plaintiff alleges to have been “warehoused” at the Otay Detention Facility in San 26 Diego, California, from October 2012 through August 2013, where he claims the 27 Corrections Corporation of America (“CCA”), and CCA officials Lawrence, Weaver, 28 Soria, Perry, Orrell, and Fay impeded his access to the court, denied him free exercise I:\Everyone\_EFILE-PROSE\LAB\14cv0041-grt -IFP&dsm.wpd 1 14cv0041 LAB (WVG) Dockets.Justia.com 1 of his religion, and deprived him of “medically approved pain relief accoutrements.” 2 See Compl. at 1-7. He seeks general and punitive damages. Id. at 7. 3 I. Motion to Proceed IFP 4 All parties instituting any civil action, suit or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus must pay a filing fee of 6 $400.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 7 prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 8 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 9 However, “[u]nlike other indigent litigants, prisoners proceeding IFP must pay the 10 full amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison 11 Litigation Reform Act].” Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As 12 defined by the PLRA, a “prisoner” is “any person incarcerated or detained in any facility 13 who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations 14 of criminal law or the terms and conditions of parole, probation, pretrial release, or 15 diversionary program.” 28 U.S.C. § 1915(h). “[A]n alien detained by the INS pending 16 deportation is not a ‘prisoner’ within the meaning of the PLRA,” because deportation 17 proceedings are civil, rather than criminal in nature, and an alien detained pending 18 deportation has not necessarily been “accused of, convicted of, sentenced or adjudicated 19 delinquent for, a violation of criminal law.” Agyeman, 296 F.3d at 886. Thus, because 20 Plaintiff claims he was “release[d] from Los Angeles Superior Court into immigration 21 custody,” he is not a “prisoner” as defined by 28 U.S.C. § 1915(h), and the filing fee 22 provisions of 28 U.S.C. § 1915(b) do not apply to him. See Compl. at 3. 23 Accordingly, the Court has reviewed Plaintiff’s affidavit of assets and finds it is 24 sufficient to show that he is unable to pay the $400 filing fee or post securities required 25 /// 26 All parties filing civil actions on or after May 1, 2013, must pay the $350 civil filing fee, as well as an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule) (eff. May 1, 28 2013). However, the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 27 1 I:\Everyone\_EFILE-PROSE\LAB\14cv0041-grt -IFP&dsm.wpd 2 14cv0041 LAB (WVG) 1 to maintain a civil action. Therefore, Plaintiff’s Motion to Proceed IFP pursuant to 28 2 U.S.C. § 1915(a) (ECF Doc. No. 2) is GRANTED . 3 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 4 A. Standard of Review 5 Any complaint filed by any person proceeding IFP is subject to sua sponte 6 dismissal by the Court to the extent it contains claims which are frivolous, malicious, or 7 fail to state a claim upon which relief may be granted, or if it “seeks monetary relief from 8 a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); 9 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the 10 provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 11 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, but 12 requires a district court to dismiss an in forma pauperis complaint that fails to state a 13 claim.”). 14 All complaints must contain “a short and plain statement of the claim showing that 15 the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are 16 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 17 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 18 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 19 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 20 requires the reviewing court to draw on its judicial experience and common sense.” Id. 21 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 22 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 23 “When there are well-pleaded factual allegations, a court should assume their 24 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 25 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 26 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 27 allegations of material fact and must construe those facts in the light most favorable to 28 /// I:\Everyone\_EFILE-PROSE\LAB\14cv0041-grt -IFP&dsm.wpd 3 14cv0041 LAB (WVG) 1 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 2 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 3 However, while the court “ha[s] an obligation where the petitioner is pro se, 4 particularly in civil rights cases, to construe the pleadings liberally and to afford the 5 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 6 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not, in 7 so doing, “supply essential elements of claims that were not initially pled.” Ivey v. Board 8 of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 9 B. Plaintiff’s Allegations 10 Plaintiff’s Complaint contains three purported causes of action. First, he claims 11 CCA Warden Lawrence, Associate Warden Weaver, Housing Unit Manager Perry, and 12 law library staff members Orrell and Fay deprived him of “meaningful access to the 13 courts” by providing him “inadequa[te] . . . legal resources,” unspecified documents, 14 “government forms,” “legal outlines,” and denying him access to the internet. See 15 Compl. at 2-5, 6-7. Second, Plaintiff claims Defendant Weaver “violated [his] First 16 Amendment rights” by “refus[ing] to authorize [Plaintiff’s] participation in the religious 17 fasting of Ramadan.” Id. at 1, 4. Finally, Plaintiff alleges Defendant Perry “failed to 18 comply with [his] . . . medical[ly] recommended approved pain relief accoutrements.” 19 Id. at 5, 7. 20 Plaintiff seeks damages, and invokes federal jurisdiction over his case pursuant 21 to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(a)(3). See Compl. at 1. However, because his 22 claims arose at the Otay Detention Facility, which operates under contract with the 23 Department of Homeland Security’s Immigrations and Customs Enforcement division 24 (“ICE”), and is managed by CCA, a private corporation, to house ICE and U.S. Marshal 25 Service detainees, the Court liberally construes Plaintiff’s claims to arise under Bivens 26 v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). 27 Bivens established that “compensable injury to a constitutionally protected interest 28 [by federal officials alleged to have acted under color of federal law] could be vindicated I:\Everyone\_EFILE-PROSE\LAB\14cv0041-grt -IFP&dsm.wpd 4 14cv0041 LAB (WVG) 1 by a suit for damages invoking the general federal question jurisdiction of the federal 2 courts [pursuant to 28 U.S.C. § 1331].” Butz v. Economou, 438 U.S. 478, 486 (1978); 3 Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000) 4 (under Bivens, “federal courts have the inherent authority to award damages against 5 federal officials to compensate plaintiffs for violations of their constitutional rights.”). 6 To state a claim under Bivens, Plaintiff must allege that a person acting under 7 color of federal law deprived him of his constitutional rights. See Serra v. Lappin, 600 8 F.3d 1191, 1200 (9th Cir. 2010). Thus, the Ninth Circuit considers “[a]ctions under 9 § 1983 and those under Bivens [as] identical save for the replacement of a state actor 10 under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 11 (9th Cir. 1991); Hartman v. Moore, 547 U.S. 250, 254, 255 n.2 (2006) (a suit brought 12 pursuant to Bivens is the “federal analogue” to § 1983). 13 C. CCA 14 As a preliminary matter, the Court notes Plaintiff has included the “Corrections 15 Corporation of America” as a Defendant in the caption of his Complaint (ECF Doc. No. 16 1 at 1), but has included no separate allegations of wrongdoing on the part of CCA itself 17 within its body. See FED.R.CIV.P. 10(a) (requiring caption of complaint to “name all the 18 parties”); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (noting that 19 a defendant is not presumed a party to the action if he is not served or named in the 20 caption, unless he is specifically and sufficiently identified later in the body of the 21 complaint). 22 While it is unclear whether Plaintiff intends to bring suit against the CCA, it is 23 clear that a Bivens action may only be brought against the responsible official alleged to 24 have acted under color of federal law in his or her individual capacity. Daly-Murphy v. 25 Winston, 837 F.2d 348, 355 (9th Cir.1988). Bivens does not authorize a suit against the 26 government or its agencies for monetary relief. FDIC v. Meyer, 510 U.S. 471, 486 27 (1994). Nor does it authorize a suit for money damages against a private entity like the 28 CCA. See Correctional Services Corp. v. Malesko, 534 U.S. 61, 66 n.2 (2001) (holding I:\Everyone\_EFILE-PROSE\LAB\14cv0041-grt -IFP&dsm.wpd 5 14cv0041 LAB (WVG) 1 that Meyer “forecloses the extension of Bivens to private entities.”). Accordingly, to the 2 extent Plaintiff intends to bring a claim against the CCA, it must be dismissed pursuant 3 to 28 U.S.C. § 1915(e)(2). Lopez, 203 F.3d at 1127. 4 D. Respondeat Superior 5 Second, the Court finds that to the extent Plaintiff seeks to hold Warden Lawrence 6 and Assistant Warden Weaver liable, in part, based on their “supervision” over “daily 7 operations” at CCA, and their alleged “failure[s] to rectify” or to provide Plaintiff with 8 an “adequate” or satisfactory “resolution” to his law library access complaints via CCA’s 9 internal grievance process, see Compl. at 2-3, 4, his Complaint fails to “contain sufficient 10 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 11 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). 12 “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff 13 must plead that each government-official defendant, through the official’s own 14 individual actions, has violated the Constitution.” Id. at 676; see also Jones v. 15 Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 16 1984) (even pro se plaintiff must “allege with at least me degree of particularity overt 17 acts which defendants engaged in” in order to state a claim). Thus, Plaintiff must include 18 in his pleading sufficient “factual content that allows the court to draw the reasonable 19 inference that the defendant is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678, 20 and describe personal acts by each individual defendant which show a direct causal 21 connection to a violation of specific constitutional rights. Taylor v. List, 880 F.2d 1040, 22 1045 (9th Cir. 1989). 23 As currently pleaded, Plaintiff’s Complaint fails to include any factual content to 24 suggest that either Lawrence or Weaver personally participated in any unconstitutional 25 violation, other than to merely “fail” to correct what Plaintiff believes were violations 26 by their subordinates via CCA’s internal grievance procedure. Therefore, he has failed 27 to state a claim upon which relief can be granted as to either of these Defendants. See 28 28 U.S.C. § 1915(e)(2). I:\Everyone\_EFILE-PROSE\LAB\14cv0041-grt -IFP&dsm.wpd 6 14cv0041 LAB (WVG) 1 E. Grievance Processing 2 Plaintiff’s only allegation against CCA’s Quality Assurance Administrator, 3 Beverly Soria, is that she “imped[ed]” Plaintiff’s right to access to the court by “fail[ing] 4 to process [his] legitimate grievances.” See Compl. at 5. To the extent Plaintiff suggests 5 this failure deprived him of “due process,” he also fails to state a plausible claim for 6 relief. See Iqbal, 556 U.S. at 678. 7 “The Fourteenth Amendment’s Due Process Clause protects persons against 8 deprivations of life, liberty, or property; and those who seek to invoke its procedural 9 protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 10 U.S. 209, 221 (2005). Plaintiff enjoys no protected liberty interest in the processing his 11 administrative grievances, however; therefore, he cannot pursue a claim for denial of due 12 process with respect to the handling or resolution of his appeals. Ramirez v. Galaza, 334 13 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). 14 Instead, to state a claim against Defendant Soria, Plaintiff must allege facts 15 sufficient to show some other personal involvement in the underlying violation of his 16 rights, namely, his right to access to the court. Iqbal, 556 U.S. at 676-77; Taylor, 880 17 F.2d at 1045. Liability may not be based merely on Plaintiff’s dissatisfaction with the 18 manner in which Soria processed–or allegedly failed to process–his administrative 19 grievances related to the sufficiency of CCA’s law library or his access to specific legal 20 research materials. Ramirez, 334 F.3d at 860; Mann, 855 F.2d at 640. 21 F. First Amendment Claims 22 Plaintiff claims Assistant Warden Weaver violated his First Amendment rights by 23 “refus[ing] to authorize [his] participation in the religious fasting of Ramadan.” See 24 Compl. at 4. Plaintiff provides no further detail. 25 The protections of the First Amendment’s Free Exercise Clause are triggered when 26 prison officials substantially burden the practice of an inmate’s religion by preventing 27 him from engaging in conduct which he sincerely believes is consistent with his faith. 28 Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (citing Malik v. Brown, 16 F.3d I:\Everyone\_EFILE-PROSE\LAB\14cv0041-grt -IFP&dsm.wpd 7 14cv0041 LAB (WVG) 1 330, 333 (9th Cir. 1994)). Free exercise however, is necessarily limited by the fact of 2 incarceration, and “may be curtailed in order to achieve legitimate correctional goals or 3 to maintain prison security.” McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) 4 (citing O’Lone v. Shabazz, 482 U.S. 342, 347-48 (1987)); see also Bell v. Wolfish, 441 5 U.S. 520, 527 (1979) (“A detainee simply does not possess the full range of freedoms of 6 an unincarcerated individual.”). 7 As currently pleaded, Plaintiff’s Complaint contains no facts which show how or 8 what Defendant Weaver did to burden or limit the exercise of any sincerely held 9 religious belief. See Shakur, 514 F.3d at 884-85. Plaintiff mentions “Ramadan” and 10 “fasting,” but his Complaint contains no additional factual content to plausibly suggest 11 how or to what extent restrictions placed on him by Defendant Weaver “put substantial 12 pressure on [him] to modify his behavior and to violate his beliefs,” Thomas v. Review 13 Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981), or forced him to “choose 14 between following the precepts of h[is] religion and forfeiting [governmental] benefits, 15 on the one hand, and abandoning one of the precepts of h[is] religion . . . on the other.” 16 Sherbert v. Verner, 374 U.S. 398, 404 (1963). Finally, Plaintiff’s Complaint does not 17 contain any allegations to show that Weaver acted without justification or unreasonably. 18 See Shakur, 514 F.3d at 884-85 (citing Turner v. Safely, 482 U.S. 78, 89 (1987)). 19 Thus, without some specific “factual content” that might allow the Court to 20 “draw the reasonable inference” that Weaver may be held liable, Plaintiff’s First 21 Amendment free exercise claims must be dismissed for failing to “state a claim to relief 22 that is plausible on its face.” Iqbal, 556 U.S. at 568. 23 G. Medical Care Claims 24 To the extent Plaintiff claims Defendant Perry denied him unidentified “medically 25 approved pain relief accoutrements,” and “fail[ed] to adhere to [a] medical 26 recommendation,” which caused Plaintiff to suffer “cruel and unusual punishment,” see 27 Compl. at 5, 7, his Complaint also fails to state a claim upon which Bivens relief can be 28 granted. Iqbal, 556 U.S. at 568. I:\Everyone\_EFILE-PROSE\LAB\14cv0041-grt -IFP&dsm.wpd 8 14cv0041 LAB (WVG) 1 2 3 4 5 6 7 In Minneci v. Pollard, 132 S.Ct. 617 (2012), the Supreme Court held a Bivens action may not be maintained: where a federal prisoner seeks damages from privately employed personnel working at a privately operated federal prison, where the conduct allegedly amounts to a violation of the Eighth Amendment, and where that conduct is a kind that typically falls within the scope of traditional state tort law (such as the conduct involving improper medical care at issue here), the prisoner must seek a remedy under state tort law. Id. at 626. 8 Thus, because Plaintiff’s inadequate medical care claims arose in a privately 9 operated immigration detention facility in California, where the state’s tort laws 10 “provide[] for ordinary negligence actions, for actions based upon ‘want of ordinary care 11 or skill,’ for actions for ‘negligent failure to diagnose or treat,’ and for actions based 12 upon the failure of one with a custodial duty to care for another to protect that other from 13 “‘unreasonable risk of physical harm,’” id. at 624 (citations omitted), no cause of action 14 under Bivens exists and he “must seek a remedy under state tort law” instead. Id. at 626; 15 see also Mirmehdi v. United States, 689 F.3d 975, 983 (9th Cir. 2012) (holding that 16 Bivens does not provide a remedy for aliens not lawfully in United States to sue federal 17 agents for monetary damages for wrongful detention pending deportation). 18 H. Access to Courts Claims 19 The true gravamen of Plaintiff’s Complaint seeks to challenge CCA’s “deficient 20 law library” and Defendant Orrell and Fay’s “failure to provide requested legal 21 materials” which Plaintiff claims to have “needed to support a writ of coram nobis & 22 response to opposition of Ninth Circuit Court of Appeals,” and/or a “writ of mandate.” 23 See Compl. at 5-7. 24 Prisoners “have a constitutional right to petition the government for redress of 25 their grievances, which includes a reasonable right of access to the courts.” O’Keefe v. 26 Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64 F.3d 1276, 27 1279 (9th Cir. 1995). In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court held 28 that “the fundamental constitutional right of access to the courts requires prison I:\Everyone\_EFILE-PROSE\LAB\14cv0041-grt -IFP&dsm.wpd 9 14cv0041 LAB (WVG) 1 authorities to assist inmates in the preparation and filing of meaningful legal papers by 2 providing prisoners with adequate law libraries or adequate assistance from persons who 3 are trained in the law.” Id. at 828. To establish a violation of the right to access to the 4 courts, however, a prisoner must allege facts sufficient to show that: (1) a non-frivolous 5 legal attack on his conviction, sentence, or conditions of confinement has been frustrated 6 or impeded, and (2) he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S. 7 343, 353-55 (1996). An “actual injury” is defined as “actual prejudice with respect to 8 contemplated or existing litigation, such as the inability to meet a filing deadline or to 9 present a claim.” Id. at 348; see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 10 1994); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall, 83 F.3d 11 1083, 1093 (9th Cir. 1996). 12 Here, Plaintiff fails to allege that either Defendant Orrell’s or Fay’s “failure[s] to 13 provide [him] with requested legal materials,” Compl. at 6, precluded his pursuit of a 14 non-frivolous direct or collateral attack upon either his criminal conviction or sentence 15 or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to access 16 to the courts protects only an inmate’s need and ability to “attack [his] sentence[], 17 directly or collaterally, and . . . to challenge the conditions of [his] confinement.”). In 18 addition, Plaintiff must also, but has failed to, describe the non-frivolous nature of the 19 “underlying cause of action, whether anticipated or lost.” Christopher v. Harbury, 536 20 U.S. 403, 415 (2002). 21 In short, because Plaintiff has failed to allege that “a complaint he prepared was 22 dismissed,” or that he was “so stymied” by Orrell and Fay’s actions that “he was unable 23 to even file a complaint,” direct appeal, or petition for writ of habeas corpus that was not 24 “frivolous,” his access to courts claims fail. Lewis, 518 U.S. at 351; Christopher, 536 25 U.S. at 416 (“like any other element of an access claim[,] . . . the predicate claim [must] 26 be described well enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’ 27 nature of the underlying claim is more than hope.”). 28 /// I:\Everyone\_EFILE-PROSE\LAB\14cv0041-grt -IFP&dsm.wpd 10 14cv0041 LAB (WVG) 1 Finally, Plaintiff’s complaints related to the general deficiencies of CCA’s law 2 library fare no better. Law libraries and legal assistance programs are only the means of 3 ensuring access to the courts. Lewis, 518 U.S. at 351. Because inmates do not have “an 4 abstract, freestanding right to a law library or legal assistance, an inmate cannot establish 5 relevant actual injury by establishing that his prison’s law library or legal assistance 6 program is subpar in some theoretical sense.” Id.; Blaisdell v. Frappiea, 729 F.3d 1237, 7 1244 (9th Cir. 2013). 8 III. 9 10 11 12 CONCLUSION AND ORDER Good cause appearing, therefor, IT IS HEREBY ORDERED that: 1. Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2) is GRANTED. 2. Plaintiff’s Complaint (ECF Doc. No. 1) is DISMISSED without prejudice 13 for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). However, Plaintiff is 14 GRANTED forty five (45) days leave from the date this Order is filed in which to re- 15 open the case by filing a Amended Complaint. Plaintiff’s Amended Complaint address 16 the deficiencies of pleading noted in this Order and must also be complete in itself 17 without reference to his original Complaint. See S.D. CAL. CIVLR 15.1; Hal Roach 18 Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading supersedes the original.”); King 19 v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted) (“All causes of action 20 alleged in an original complaint which are not alleged in an amended complaint are 21 waived.”). 22 Should Plaintiff fail to file a Amended Complaint within the time provided, this 23 civil action shall remain closed and case shall remain dismissed without prejudice based 24 on Plaintiff’s failure to state a claim upon which relief can be granted pursuant to 28 25 U.S.C. § 1915(e)(2)(B). 26 DATED: June 23, 2014 27 28 HONORABLE LARRY ALAN BURNS United States District Judge I:\Everyone\_EFILE-PROSE\LAB\14cv0041-grt -IFP&dsm.wpd 11 14cv0041 LAB (WVG)
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