Opinion
No. C 02-0913 VRW (PR)
March 8, 2002
ORDER OF DISMISSAL
Plaintiff a prisoner at Pelican Bay State Prison ("PBSP"), has filed a pro se civil rights complaint for damages under 42 U.S.C. § 1983 alleging that PBSP officials "caused" the dismissal of his 1999 federal habeas petition, Browner v. Ayers, No C 99-4369 CAL (PR) (N.D. Cal. filed Sept 27, 1999), when they failed "to act" to ensure that all court mail sent to him at PBSP was delivered to him. According to plaintiff defendants' "deliberate indifference" caused him not to receive a copy of a January 11, 2000 order from Judge Legge which, in turn, caused the dismissal of his habeas action on January 27, 2000.
Plaintiff also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.
DISCUSSION
A. Standard of Review
Federal courts must engage in a preliminaiy screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief" Id § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law.West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff first filed this action on November 11, 2001 alleging that "negligence" on the part of PBSP officials caused him not to receive two orders issued by Judge Legge in plaintiffs 1999 habeas action. SeeBrowner v. Ayers, No C 01-4244 VRW (PR) (N.D. Cal. filed Nov 14, 2001). The court dismissed the action on the ground that negligence is not actionable under § 1983, and also explained that plaintiff did not receive a copy of the earlier orders due to an apparent omission/mistake by the clerk's office:
Here, a careful review of the record in plaintiffs 1999 habeas action shows that two separate orders . . . issued by Judge Legge on January 11 and 27, 2000, and mailed to plaintiff, were returned to the Court as undeliverable because plaintiff could not be identified. It appears that the mail addressed to plaintiff by the clerk's office either did not include plaintiffs prisoner number or included a prisoner number that did not correspond to plaintiff Although regrettable, the omission/mistake did not amount to more than negligence and therefore cannot give rise to a constitutional claim.
Nov 30, 2001 Order at 2 (footnote and citations omitted). Plaintiffs attempt to revive his original action by simply now claiming that PBSP officials were "deliberately indifferent," rather than "negligent," will not do. There is no indication whatsoever that PBSP officials were deliberately indifferent to plaintiffs basic needs. See Farmer v. Brennan, 511 U.S. 825, 832 (1994); see also id at 835-36 n4 (neither negligence nor gross negligence constitutes deliberate indifference under the 8th Amendment).
Moreover, the record in plaintiffs 1999 habeas action makes clear that no omission or action by PBSP officials "caused" the dismissal of plaintiffs 1999 habeas action. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir 1988) (in order to recover damages, plaintiff must allege and show that a named defendant was deliberately indifferent to the mandates of the 8th Amendment and that this indifference was the "actual and proximate cause" of the deprivation of which plaintiff complains). Judge Legge dismissed plaintiffs 1999 habeas action on his own motion on January 11, 2000 for failure to state a cognizable claim for relief under 28 U.S.C. § 2254 because "petitioner presented to the state courts only state law claims for review and . . . raises only state law claims in his federal petition." Jan 11, 2000 Order at 3. Judgment was entered in favor of the respondent that same day. That plaintiff did not receive a copy of the January 11, 2000 order had no effect on judgment being entered in favor of respondent.
On January 27, 2000, Judge Legge issued an order dismissing the case for failure to prosecute. Although it is not clear why the second order of dismissal issued, it is clear that judgment was entered in favor of respondent on January 11, 2000 for failure to state a cognizable claim for relief under § 2254.
CONCLUSION
For the foregoing reasons, plaintiffs request to proceed in forma pauperis (doc #2) is DENIED and the complaint for damages is DISMISSED under the authority of 28 U.S.C. § 1915A.The Clerk shall close the file.