Thomas v. Hernandez et al, No. 3:2007cv01141 - Document 31 (S.D. Cal. 2010)
Court Description: ORDER Granting (Doc. 23 ) Defendants' Motion to Dismiss. The Court Grants Defendants' Motion to Dismiss with leave to amend. If Plaintiff wishes, he shall file a First Amended Complaint on or before October 13, 2010. If Plaintiff does not file a First Amended Complaint by October 13, 2010, the Court shall dismiss this action in its entirety. Signed by Magistrate Judge William V. Gallo on 9/13/2010. (All non-registered users served via U.S. Mail Service) (srm)
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Thomas v. Hernandez et al Doc. 31 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN PAUL THOMAS, 12 Plaintiff, 13 v. 14 ROBERT HERNANDEZ, BOARD OF PRISON TERMS UNKNOWN DEPUTY COMMISSIONER, 15 16 17 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 07-1141-WVG ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS (Doc. # 23) 18 19 John Paul Thomas(hereafter “Plaintiff”), an inmate proceeding 20 pro se and in forma pauperis, filed a Complaint pursuant to 42 U.S.C. 21 § 1983 (hereafter “Complaint”) claiming that his civil rights were 22 violated in March 2007, when he was housed at the Richard J. Donovan 23 Correctional Facility. He sues Defendants Robert Hernandez and Board 24 of Prison Terms Unknown Deputy (hereafter “Defendant Hernandez,” 25 “Defendant Unknown Deputy,” or collectively “Defendants”), in their 26 official and individual capacities, and seeks injunctive relief, 27 compensatory damages, and punitive damages. 28 Motion to Dismiss the Complaint. Plaintiff has filed an Opposition to 1 Defendants have filed a 07cv1141 Dockets.Justia.com 1 the Motion. In Plaintiff’s Complaint, Plaintiff consented to have the 2 undersigned conduct all proceedings in this case, including trial and 3 the entry of final judgment, pursuant to 28 U.S.C. §636(c) and Fed. 4 R. Civ. Pro. 73. 5 The Court, having reviewed the Complaint, Opposition, the exhibits 6 attached thereto, and GOOD CAUSE APPEARING, HEREBY GRANTS Defendants’ 7 Motion to Dismiss. On April 16, 2010, Defendants also so stipulated. 8 I 9 FACTUAL ALLEGATIONS 10 On December 16, 2006, Plaintiff was served with a notice of 11 an institutional disciplinary hearing, CDC Serious Rule Violation 12 Report form 115 (hereafter “RVR”). 13 committed a battery on a peace officer. (Complaint at 3). 14 The RVR alleged that Plaintiff On January 10, 2007, Plaintiff was informed that the Board of 15 Prison 16 violation,” or a “parole revocation extension,” because of the RVR. 17 (Complaint at 3). 18 entitled, 19 Extension Proceedings,” which started a thirty-five calendar day time 20 limit to hold his final parole revocation hearing. (Complaint at 3). 21 Terms (hereafter “BPT”), gave him an “in house parole On that same day, Plaintiff signed a BPT form “Notice of Rights/Acknowledgment of Parole On February 14, 2007, the time limit expired. Revocation After the time 22 limit expired, Plaintiff wrote a letter to Defendant Hernandez that 23 explained to Hernandez that Hernandez must dismiss the charges and 24 drop the “parole hold” against him. 25 from Hernandez a letter of denial. (Complaint at 3). 26 On March 15, 2007, Thereafter, Plaintiff received Plaintiff had his parole revocation 27 extension 28 explained that Plaintiff’s parole revocation extension hearing had to hearing. At the hearing, 2 Plaintiff’s representative 07cv1141 1 be dropped because the BPT allowed the thirty-five day deadline to 2 lapse. Defendant Unknown Deputy responded that it would not matter 3 because 4 Plaintiff explained that the allegations of battery in the RVR were 5 false and provided two witness statements to corroborate his version 6 of the events. He claims that he did not assault a peace officer. 7 Rather, 8 Plaintiff requested that the written statements be returned to him. 9 The BPT told Plaintiff that it would return the statements to him by Plaintiff the peace 10 mail. 11 would still officer be in assaulted prison. him. (Complaint (Complaint at at 4, 3). 5). (Complaint at 5). Plaintiff claims that the statements were not returned to him. 12 At the hearing, Plaintiff was found guilty of the Rule 13 Violation and was given an additional 110 day sentence. (Complaint at 14 3, 4). Plaintiff claims that he requested final written documentation 15 of the hearing, but Defendant Hernandez has not provided it to him. 16 (Complaint at 4). 17 On May 10, 2007, Plaintiff filed a Petition for Writ of Habeas 18 Corpus in the Superior Court. 19 of the parole revocation hearing violated his constitutional rights. 20 The Petition was denied because, as Plaintiff alleges, he failed to 21 provide the court with the necessary documentation of the parole 22 revocation hearing. Plaintiff alleges that the documentation to which 23 the court referred was the final written documentation of the parole 24 revocation hearing that was never given to him despite his request to 25 receive it. (Complaint at 4). 26 27 The Petition claimed that the result Further, Plaintiff alleges that he needs the two above-noted written statements about how he was assaulted by a prison correct- 28 3 07cv1141 1 ional officer in order to pursue a separate lawsuit regarding the 2 assault. (Complaint at 5). 3 II 4 PLAINTIFF’S CLAIMS 5 Plaintiff claims the following: 6 (1) 7 revocation hearing was held after the expiration of the 35-day period 8 to hold the hearing; and 9 (2) His right to due process was violated because Defendants denied 10 His right to due process was violated because his parole him access to the courts. 11 Defendants’ Motion asserts: 12 (1) 13 Plaintiff’s claim regarding his parole revocation hearing; and 14 (2) Plaintiff’s access to the courts claim should be dismissed because 15 Plaintiff attempted to advance a frivolous claim; Plaintiff was not 16 precluded from filing a lawsuit for assault against a correctional 17 officer; and Plaintiff, in fact, filed the lawsuit for assault against 18 the correctional officer. The Court 19 does not have subject matter jurisdiction over III 20 STANDARD OF REVIEW 21 A motion to dismiss for failure to state a claim pursuant to 22 FED. R. CIV. P. 12(b)(6) tests the legal sufficiency of the claims in 23 the complaint. 24 plain statement of the claim showing that the pleader is entitled to 25 relief” in order to “give the defendant fair notice of what the ... 26 claim is and the grounds upon which it rests.” 27 v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 28 U.S. 41, 47 (1957)); Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007). FED. R. CIV. P. 8(a)(2) requires only “a short and 4 Bell Atlantic Corp. 07cv1141 1 Dismissal of a claim is appropriate only where the complaint lacks a 2 cognizable theory. 3 must accept as true all material allegations in the complaint, as well 4 as reasonable inferences to be drawn from them, and must construe the 5 complaint in the light most favorable to the plaintiff. 6 Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks 7 School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 8 1995). 9 “ultimately prevail.” Bell Atlantic, 550 U.S. at 553-565. The court N.L. The court does not look at whether the plaintiff will Scheuer v. Rhodes, 94 S.Ct. 1683, 1686 (1974). 10 “If a complaint is accompanied by attached documents, the 11 court is not limited by the allegations contained in the complaint. 12 These documents are part of the complaint and may be considered in 13 determining whether the plaintiff can prove any set of facts in 14 support of the claim.” Roth v. Garcia Marquez, 942 F.2d 617, 625 n.1 15 (1991) [quoting Durning v. First Boston Corp., 815 F.2d 1265, 1267 16 (9th Cir.1987)]. "[W]hen the allegations of the complaint are refuted 17 by an attached document, the Court need not accept the allegations as 18 being true." 19 Loan Ass'n, 265 F.2d 643, 646 n.1 (9th Cir.1958)]. 20 Roth, 942 F.2d 625 n.1 [citing Ott v. Home Savings & “The focus of any Rule 12(b)(6) dismissal . . . is the 21 complaint.” 22 1194, 1197 n.1 (9th Cir. 1998). 23 dismiss for failure to state a claim, the court may not generally 24 consider materials outside the pleadings. 25 consideration of “new” allegations that may be raised in a plaintiff’s 26 opposition to a motion to dismiss brought pursuant to FED.R.CIV.P. 27 12(b)(6). Id. (citing Harrell v. United States, 13 F.3d 232, 236 (7th 28 Cir. 1993); 2 Moore’s Federal Practice, § 12.34[2] (Matthew Bender 3d Schneider v. California Dep’t of Corrections, 151 F.3d Thus, when resolving a motion to 5 Id. This precludes 07cv1141 1 ed.) [“The court may not . . . take into account additional facts 2 asserted in a memorandum opposing the motion to dismiss, because such 3 memoranda do not constitute pleadings under Rule 7(a).”)]. 4 To state a claim under 42 U.S.C. § 1983, a plaintiff must 5 show: (1) that the conduct complained of was committed by a person 6 acting under color of state law; and, (2)that the conduct deprived the 7 plaintiff of a constitutional right. Broam v. Bogan, 320 F.3d 1023, 8 1028 (9th Cir. 2003); 9 696, 699 (9th Cir. 1988). Balistreri v. Pacifica Police Dept., 901 F.2d Vicarious liability does not exist under § 10 1983. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009); Jones v. 11 Williams, 297 F.3d 930, 934 (9th Cir. 2002) (citations omitted). 12 hold a person “liable under section 1983 there must be a showing of 13 personal participation in the alleged rights deprivation.” 14 supervisory official may be liable only if he or she was personally 15 involved 16 sufficient causal connection between the supervisor’s wrongful conduct 17 and the constitutional violation. 18 942 F.2d 1435, 1446 (9th Cir. 1991). Causation may be established only 19 by showing that the supervisor set in motion a series of acts by 20 others, which the supervisor knew or reasonably should have known 21 would cause others to inflict the injury. Watkins v. City of Oakland, 22 145 F.3d 1087, 1093 (9th Cir. 1998). in the constitutional deprivation, or if Id. there was To A a See Redman v. County of San Diego, 23 Where a plaintiff appears in propria persona in a civil rights 24 case, the Court must also be careful to construe the pleadings 25 liberally and afford plaintiff any benefit of the doubt. 26 Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988); 27 Bretz v. Kelman, 773 F.2d 1026, 1027, n.1 (9th Cir. 1985) (en banc). 28 The rule of liberal construction is “particularly important in civil 6 See Karim- 07cv1141 1 rights cases.” 2 1992); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (“Presum- 3 ably unskilled in the law, the pro se litigant is far more prone to 4 making errors in pleading than the person who benefits from the 5 representation of counsel.”). 6 pro se civil rights complaint, however, a court may not “supply 7 essential elements of the claim that were not initially pled.” 8 v. Bd. of Regents of the University of Alaska, 673 F.2d 266, 268 (9th 9 Cir. 1982). “Vague and conclusory allegations of official participa- 10 tion in civil rights violations are not sufficient to withstand a 11 motion to dismiss.” 12 1290 (9th Cir. 1977) (“Conclusory allegations, unsupported by facts, 13 [will be] rejected as insufficient to state a claim under the Civil 14 Rights Act.”). 15 allege with at least some degree of particularity overt acts which 16 defendants engaged in that support [his] claim.” 17 Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. In giving liberal interpretation to a Ivey Id.; see also Sherman v. Yakahi, 549 F.2d 1287, Thus, at a minimum, even the pro se plaintiff “must Jones v. Community 18 “Unlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can 19 attack the substance of a complaint’s jurisdictional allegations 20 despite their formal sufficiency, and in doing so rely on affidavits 21 or any other evidence properly before the court.” United Here Int’l. 22 Union v. Pala Band of Mission Indians, 583 F. Supp. 2d 1190, 1194 23 (S.D. Cal. 2008)[citing St. Clair v. City of Chico, 880 F.2d 199, 201 24 (9th Cir. 1989)]. In ruling on a challenge to subject matter jurisdic- 25 tion, the district court is ordinarily free to consider evidence 26 regarding 27 necessary. United Here, 583 F. Supp. 2d at 1194 [citing Thornhill 28 Publishing v. General Tel. & Electric Corp, 594 F.2d 730, 733 (9th jurisdiction, and may 7 resolve factual disputes 07cv1141 when 1 Cir. 1979)]. In such circumstances, presumptive truthfulness does not 2 attach to a plaintiff’s allegations and the existence of disputed 3 material facts does not preclude the court from evaluating the merits 4 of the jurisdictional claim. United Here, 583 F. Supp. 2d at 1194-1195 5 (citing Thornhill, 594 at 733). 6 7 IV 8 THE COURT DOES NOT HAVE JURISDICTION OVER PLAINTIFF’S PAROLE REVOCATION CLAIM Plaintiff claims that his due process rights were violated 9 because his parole revocation hearing was not held within 35 days of 10 receiving and signing the parole revocation notice. Defendants argue 11 that the Court lacks jurisdiction over Plaintiff’s claim. 12 On January 10, 2007, Plaintiff received and signed the parole 13 revocation notice. On March 15, 2007, the BPT held Plaintiff’s parole 14 revocation hearing. 15 Rules Violation and was given an additional 110 day sentence. At the hearing, Plaintiff was found guilty of a 16 Although it is not clear from Plaintiff’s Complaint, Plaintiff 17 appears to allege that he is a member of a class of inmates governed 18 by the remedial Order of Permanent Injunction filed in Valdivia v. 19 Schwarzenegger, 20 2004)(hereafter “Valdivia Order”). 21 a class which consists of the following persons: (1) California 22 parolees who are at large; (2) California parolees in custody as 23 alleged parole violators, and who are awaiting revocation of their 24 state parole; and (3) California parolees who are in custody having 25 been found in violation of parole and sentenced to prison custody. 26 (Valdivia Order at 1). No. S-94-0671 LKK/GGH (E.D. Cal. March 9, In Valdivia, the court certified 27 Further, the Valdivia Order states: “For all parolees who do 28 not waive or seek a continuance of a final revocation hearing, 8 07cv1141 1 Defendants shall provide a final revocation hearing on or before the 2 35th calendar day after the placement of the parole hold.” [Valdivia 3 Order at 4, 6, Sections IV.11(b)(iv) and 23](attached to Defendant’s 4 Memorandum of Points and Authorities is Support of Motion to Dismiss, 5 Exh. A).1/ 6 Here, Plaintiff appears to be a member of the class in that 7 he is in custody and has been found in violation of parole and 8 sentenced to prison custody. Therefore, the requirements of the 9 Valdivia Order appear to apply to him. 10 For purposes of this Order, the Court will so assume. 11 The Court lacks subject matter jurisdiction over Plaintiff’s 12 parole revocation claim because the Valdivia court expressly retained 13 jurisdiction over such claims. (Valdivia Order at 7, Section VII. 14 28.). Brown v. Cate, 2009 WL 1858119 at *5 (E.D. Cal. June 29, 2009); 15 Soto v. Board of Prison Terms, 2007 WL 2947573 at *2 (E.D. Cal. 16 October 9, 2007). Therefore, Plaintiff must seek the relief requested 17 in his parole revocation claim in the Court that issued the Valdivia 18 Order. 19 Further, a remedial order, standing alone can not form the 20 basis of liability under 42 U.S.C. §1983. Green v. McKaskle, 788 F.2d 21 1116, 1123 (5th Cir. 1986). Moreover, in order to state a claim that 22 failure 23 plaintiff’s constitutional rights, a plaintiff must show that the 24 delay in holding the parole revocation hearing was both unreasonable 25 and prejudiced his rights. Hopper v. U.S. Parole Commission, 702 F.2d 26 842, 845 (9th Cir. 1983). to hold a timely parole revocation hearing violated 27 28 1/ The Court takes judicial notice of the Valdivia Order pursuant to Fed. Rule of Evid. 201, and United Here , 583 F. Supp. 2d at 11941195. 9 07cv1141 a 1 In Poynor v. U.S. Parole Commission, 878 F. 2d 275, 277 (9th 2 Cir. 1989), a plaintiff inmate parolee alleged in a petition for writ 3 of habeas corpus that he was entitled to relief because he suffered 4 an eight month delay in having his parole revocation hearing. The 5 court reiterated that an inmate-parolee who makes a claim that his 6 parole revocation hearing was untimely must show prejudice before 7 relief can be granted. 8 Here, Plaintiff’s Complaint refers to the reporting correc- 9 tional officer’s statements at the March 15, 2007 parole revocation 10 hearing, that the correctional officer “could not remember due to the 11 time lapse.” (Complaint at 4). Plaintiff argues that had the parole 12 revocation hearing been timely held, the correctional officer would 13 have remembered and the correctional officer’s testimony would have 14 been crucial to his defense at the parole revocation hearing. 15 As previously noted, on January 10, 2007, Plaintiff signed the 16 BPT’s Notice of Rights/Acknowledgment of Parole Revocation Proceed- 17 ings. 18 days elapsed between January 10, 2007 and March 15, 2007. 19 Plaintiff’s parole revocation hearing was delayed for 29 days after 20 the day Plaintiff claims it should have been held,(64 - 35 = 29), 21 presumably pursuant to the Valdivia Order. 22 On March 15, 2007, the parole revocation hearing was held. 64 Therefore, Plaintiff’s allegation about what the correctional officer 23 could not remember is unclear. 24 correctional officer been able to remember, his testimony at the 25 parole revocation hearing would have supported Plaintiff’s version of 26 the events and the BPT would have believed him. Plaintiff’s assertions 27 in these regards are mere speculation. 28 conclude that if the correctional officer remembered unspecified facts Nevertheless, he assumes that had the 10 Therefore, the Court can not 07cv1141 1 and circumstances, he would have testified in support of Plaintiff and 2 that the BPT would have believed him. 3 unlikely that the correctional officer’s memory would have been 4 different prior to the 29 day delay in holding the parole revocation 5 hearing. Accordingly, Plaintiff has failed to show that he was 6 prejudiced in this regard. 7 facts to show that the 29 day delay was unreasonable under the 8 circumstances. 9 Further, the Court finds it Further, Plaintiff does not assert any As a result, the Court GRANTS Defendant’s Motion to Dismiss 10 for 11 Plaintiff’s failure to show that the 29 day delay in holding his 12 parole revocation hearing was unreasonable, or that he was prejudiced 13 because of the delay. lack of subject matter jurisdiction and alternatively for 14 To the extent that Plaintiff claims that he is not a member 15 of the class in Valdivia, and he does not bring his claim for the 16 untimely parole revocation hearing pursuant to Valdivia, he is given 17 leave of court to file an Amended Complaint. 18 V 19 PLAINTIFF FAILS TO STATE A CLAIM FOR DENIAL OF ACCESS TO THE COURTS 20 Plaintiff claims that he was denied access to the courts 21 because Defendant Unknown Deputy failed to return to him the “final 22 written documentation” of his parole revocation hearing. He asserts 23 that his failure to present the “final written documentation” of the 24 parole revocation hearing to the California Superior Court caused it 25 to deny his Petition for Writ of Habeas Corpus. 26 claims that since the BPT did not return to him the two written 27 witness 28 hearing, his “right to file a lawsuit against the assault has been statements that he presented 11 at the Further, Plaintiff parole revocation 07cv1141 1 extremely delayed/hindered to the point of denial of access to the 2 courts.” (Complaint at 4), and that “without these written state- 3 ments, (he has) been denied the ability to begin writing up my 4 complaint and form my legal strategy.” (Complaint at 5). Defendants 5 argue that Plaintiff’s claim should be dismissed because his Petition 6 for Writ of Habeas Corpus was frivolous. 7 their actions did not prevent Plaintiff from filing a lawsuit for 8 assault against a correctional officer, and in fact, Plaintiff filed 9 the lawsuit for assault against the correctional officer. Defendants also argue that 10 Under the First and Fourteenth Amendments to the Constitu- 11 tion, state prisoners have a right of access to the courts. Lewis v. 12 Casey, 518 U.S. 343, 346 (1996). “(A)ccess to the courts means the 13 opportunity to prepare, serve and file whatever pleadings or other 14 documents are necessary or appropriate in order to commence or 15 prosecute court proceedings affecting one’s personal liberty. Id. at 16 384. 17 When a prisoner asserts that he was denied access to the 18 courts and seeks a remedy for a lost opportunity to present a legal 19 claim, he must show: (1) the loss2/ of a non-frivolous or arguable 20 underlying claim; (2) the official acts that frustrated the litiga- 21 tion; and (3) a remedy that may be awarded as recompense but that is 22 not otherwise available in a future suit. Phillips v. Hust, 477 F.3d 23 1070, 1076 (9th Cir. 2005), citing Christopher v. Harbury, 536 U.S. 24 403, 413-414 (2002), overruled on other grounds, Hust v. Phillips, 25 129 S.Ct. 1036 (2009). The right of access to the courts ensures that 26 a complaint for violation of civil rights or a petition for writ of 27 28 2/ ”Loss” in this context means that a plaintiff was unable to file his claim due to circumstances beyond his control. 12 07cv1141 1 habeas corpus filed by a person in custody will reach the court for 2 consideration. Once a claim reaches a court, a person in custody is 3 in the same position as a person who is not in custody, to file a 4 civil rights complaint or a petition for writ of habeas corpus. 5 Cornett v. Donovan 51 F.3d 894, 899 (9th Cir. 1995), citing Hooks v. 6 Wainright, 775 F.2d 1433, 1436 (11th Cir. 1985), cert. denied 479 U.S. 7 913 (1986). 8 1. Denial of Petition for Writ of Habeas Corpus 9 Plaintiff claims that Defendant Unknown Deputy’s failure to 10 provide him “final written documentation” of his parole revocation 11 hearing caused the California Superior Court to deny his Petition for 12 Writ of Habeas Corpus. 13 As noted above, in order to state a claim for denial of 14 access to the courts, Plaintiff must allege the loss of a non- 15 frivolous or arguable underlying claim. 16 the Superior Court denied his Petition for Writ of Habeas Corpus due 17 to his failure to provide the court with the necessary documentation 18 to support his Petition. 19 Writ of Habeas Corpus in the California Superior Court. Therefore, 20 the court 21 consideration and the court considered the Petition. As a result, 22 Plaintiff did not lose his claim, or present facts to suggest that 23 he was unable to file his claim due top circumstances beyond his 24 control. Petition for Writ Here, Plaintiff claims that However, Plaintiff filed the Petition for of Habeas Corpus reached the for 25 Further, as previously noted, in order for Plaintiff to 26 maintain a claim for denial of access to the courts with regard to 27 his untimely parole revocation hearing, he must allege that the delay 28 in holding the parole revocation 13 hearing was unreasonable 07cv1141 and 1 prejudiced his rights. Hopper, supra at 845; Poynor, supra at 277. 2 The Court has already concluded that Plaintiff’s Complaint fails to 3 indicate any facts to suggest that the parole revocation hearing 4 delay was unreasonable or that the delay prejudiced his rights. 5 Therefore, the relief sought by Plaintiff in his Petition for Writ 6 of Habeas Corpus was unavailable. Hopper, supra at 845; Poynor, supra 7 at 277; Berg v. U.S. Parole Commission, 735 F.2d 378, 379 n.3 (9th 8 Cir. 1984). 9 of Habeas Corpus in the California Superior Court and/or appellate 10 court that is supported by the “final written documentation” of the 11 parole revocation hearing, after he receives that documentation. 12 Therefore, Plaintiff is afforded a remedy that is available in a 13 future petition for writ of habeas corpus. 14 fails to meet at least two elements required to allege a claim for 15 denial of access to the courts. Consequently, Defendants’ Motion to 16 Dismiss in this regard is GRANTED. 17 amend his Complaint to cure the deficiencies therein as noted by the 18 Court. 19 Moreover, Plaintiff may file another Petition for Writ As a result, Plaintiff Plaintiff is given leave to 2. Right to File a Lawsuit 20 Plaintiff claims that he has been unable to file a lawsuit 21 for assault against a correctional officer because the BPT did not 22 return to him two witness statements that he presented at his parole 23 revocation hearing. 24 he did not file the lawsuit because he feared retaliation from 25 correctional officers and that he, in fact, filed the lawsuit against 26 the correctional officer. Defendants argue that Plaintiff admitted that 27 Plaintiff’s Complaint clearly alleges that Plaintiff did not 28 file a lawsuit against a correctional officer for fear of retaliation 14 07cv1141 1 from correctional officers. Plaintiff’s Complaint states in pertinent 2 part: “(The correctional officer) was lying to justify his unprovoked 3 attacking and assaulting me (upcoming lawsuit to be filed after 4 paroled due to safety issues with peace officers.)” (Complaint at 4). 5 Here, Plaintiff’s allegations establish that he did not file the 6 lawsuit against a correctional officer who allegedly assaulted him 7 because he feared retaliation for filing the lawsuit. 8 Plaintiff fails to allege any acts of any correctional officer that 9 prevented him from filing the lawsuit, or that a remedy is not 10 available to him in a future lawsuit against the correctional officer 11 who allegedly assaulted him. However, 12 Moreover, Plaintiff, in fact, filed the lawsuit he alleges he 13 could not file. The Court’s records reflect that on the same day that 14 Plaintiff filed the instant lawsuit (June 22, 2007), Plaintiff also 15 filed another lawsuit against the correctional officer who allegedly 16 assaulted him. (U.S. District Court, Southern District of California, 17 Case No. 07-1142, Doc. #1). 18 lawsuit for failure to prosecute. (U.S. District Court, Southern 19 District of California, Case No. 07-1142, Doc. #8). 20 Therefore, since On June 5, 2008, the Court dismissed that Plaintiff filed a lawsuit against the 21 correctional officer who allegedly assaulted him, his claim that he 22 has been denied access to the courts is belied by the Court’s records. 23 Consequently, the Court concludes that Plaintiff did not lose the 24 opportunity to present to the Court his claim regarding the 25 assault. As a result, Plaintiff was not denied access to the 26 courts with regard to the lawsuit for assault. 27 Dismiss in this regard is GRANTED. alleged Defendant’s Motion to 28 15 07cv1141 1 VI 2 CONCLUSION 3 The Court, having reviewed Defendants’ Motion to Dismiss and 4 Plaintiff’s 5 Defendants’ Motion to Dismiss with leave to amend. Opposition to the Motion to Dismiss, HEREBY GRANTS 6 If Plaintiff wishes to further pursue this litigation, he shall 7 file a First Amended Complaint that addresses the deficiencies in his 8 Complaint as noted in this Order. 9 be filed on or before October 13, 2010. The First Amended Complaint shall If Plaintiff does not file a 10 First Amended Complaint on or before the date noted above, the Court 11 shall dismiss this action in its entirety. 12 13 DATED: September 13, 2010 14 15 Hon. William V. Gallo U.S. Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 16 07cv1141
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