Opinion
ORDER
DALE A. DROZD, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed March 21, 2014, plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has since filed a first amended complaint. (FAC, ECF No. 10.)
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious, " that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1) & (2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 555. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint. See Hosp. Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
In the FAC, plaintiff identifies former California State Prison-Sacramento Warden Tim Virga and Correctional Officer A. Agnone as defendants in this action. (ECF No. 10 at 1, 2.) However, plaintiff's FAC contains no allegations describing any acts or omissions of defendant Warden Virga.
Plaintiff alleges as follows in his FAC. At all pertinent times, plaintiff was incarcerated at California State Prison-Sacramento ("CSP-SAC"). There, plaintiff "was known as a jailhouse lawyer...." (ECF No. 10 at 3.) Plaintiff suffers from a mobility impairment, a fact that is known to defendant Agnone. (Id. at 4.) At an unspecified point in time, defendant Agnone wrote a rules violation report, citing plaintiff for "not standing during count." (Id.) It appears, though plaintiff does not explicitly allege, that plaintiff was unable to stand on the occasion in question due to his mobility impairment. (Id.) Plaintiff then filed an administrative grievance alleging disability discrimination by defendant Agnone for writing the rules violation report. (Id.) At the time a response to the grievance was returned, defendant Agnone removed property, including legal materials, from plaintiff's cell "until due process was up." (Id.) When challenged, defendant Agnone returned a television to plaintiff's cell, but not the legal materials that had been seized therefrom. (Id.)
The court is uncertain what plaintiff means in using this phrase.
At another, presumably later, point in time, when plaintiff's cell-block at CSP-SAC was on lockdown, defendant Agnone deprived plaintiff of all of his law books. (ECF No. 10 at 4.) Due to the lockdown, plaintiff was also unable to access the law library. (Id.) Plaintiff contends that, by depriving him of necessary legal materials, defendant Agnone thereby ensured that he (Agnone) would not be held liable for discriminating against plaintiff. (Id.)
According to plaintiff, defendant Agnone performed all of these actions in order to deny plaintiff access to the courts. (ECF No. 10 at 4.)
As currently pled, plaintiff's FAC fails to state a claim for relief. It appears that plaintiff may be attempting to allege that defendant Agnone retaliated against him for filing inmate grievances. The following standards apply to such a claim. It is well-established that prison inmates have a constitutional right to freedom from retaliation for engaging in activity protected by the First Amendment. Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005). A retaliation claim brought by an inmate has five elements. First, the plaintiff must allege and demonstrate that he was engaged in conduct protected by the First Amendment. See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). Second, a "plaintiff must claim that the defendant took adverse action against the plaintiff." Id . (citing Rhodes, 408 F.3d at 567). "The adverse action need not be an independent constitutional violation." Id . (citing Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995)). Third, plaintiff must allege and prove a causal connection between the protected conduct and the adverse action. Id . Fourth, the plaintiff must allege and prove either a chilling effect on the exercise of First Amendment rights or some other harm. Id . Finally, plaintiff must allege and show that the retaliatory action "did not advance legitimate goals of the correctional institution....'" Id . (quoting Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)).
In his FAC, plaintiff has satisfactorily alleged four of these five elements. First, plaintiff has alleged that, by filing an inmate grievance against defendant Agnone, plaintiff engaged in conduct protected under the First Amendment. Plaintiff has also alleged that defendant Agnone took adverse action against him, by removing legal materials and other property from his cell. While plaintiff could have more explicitly pled a causal connection between these actions, the allegation that defendant Agnone removed plaintiff's property after plaintiff received a response to his inmate grievance against defendant Agnone is sufficient to satisfy this element for pleading purposes. Finally, plaintiff has alleged that his legal materials were removed in order to deny him access to the courts, i.e., an illegitimate correctional goal. However, plaintiff has failed to allege in sufficient detail the harm that allegedly resulted from defendant Agnone's adverse action against him. Statements such as "my property couldn't be found until due process was up" and "C/O Agnone granted his self (sic) immunity" lack sufficient factual content to provide notice of how the alleged removal of plaintiff's legal property impaired plaintiff's ability to proceed on his inmate grievances. Nonetheless, plaintiff will be granted an opportunity to remedy this deficiency in a second amended complaint if he wishes to pursue this action.
It also appears that plaintiff is attempting to bring a claim against defendant Agnone for interference with plaintiff's right of access to the courts, based on the removal of plaintiff's legal materials. The right of access to the courts "forbids states from erect[ing] barriers that impede the right of access of incarcerated persons'" to file civil actions that have a "reasonable basis in law or fact.'" Silva v. DeVittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (quoting Snyder v. Nolen, 380 F.3d 279, 290 (7th Cir. 2004) and John L. v. Adams, 969 F.2d 228, 235 (6th Cir. 1992)). A prisoner asserting any denial of access to the courts claim must allege the anticipated or lost underlying cause of action as well an "actual injury, ' - that is actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim.'" Lewis v. Casey, 518 U.S. 343, 348 (1996). See also Christopher v. Harbury, 536 U.S. 403, 415 (2002); Nevada Dept. of Corrs. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011). If plaintiff chooses to proceed with this claim in a second amended complaint, he must provide therein factual allegations that, if proven, would demonstrate that he suffered an actual injury under the standard set forth above.
Although the Federal Rules adopt a flexible pleading policy, under Federal Rule of Civil Procedure 8(a)(2), a complaint must give fair notice to the defendants and must allege facts that support the elements of the claim plainly and succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support his claims. Id . Because plaintiff has failed to comply with the requirements of Rule 8(a)(2), his first amended complaint must be dismissed. In the interests of justice, the court will grant plaintiff leave to file a second amended complaint.
If plaintiff chooses to file a second amended complaint, plaintiff must allege facts demonstrating how the conditions complained of resulted in a deprivation of plaintiff's federal constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Any second amended complaint plaintiff may elect to file must allege in specific terms how each named defendant was involved in the deprivation of plaintiff's rights. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff is also reminded that the court cannot refer to prior pleadings in order to make his second amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes prior complaints. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the prior complaints no longer serve any function in the case. Therefore, in any amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's first amended complaint (ECF No. 10) is dismissed.
2. Plaintiff is granted thirty days from the date of service of this order to file a second amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the second amended complaint must bear the docket number assigned to this case and must be labeled "Second Amended Complaint"; failure to file a second amended complaint in accordance with this order will result in a recommendation that this action be dismissed without prejudice.