Opinion
2:21-cv-01415-KJM-JDP (PC)
12-27-2021
ROBERT TREVINO, Plaintiff, v. G. BURKE, et al., Defendants.
ORDER GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS ECF NO. 2
SCREENING ORDER THAT PLAINTIFF:
(1) STAND BY HIS COMPLAINT SUBJECT TO DISMISSAL, OR
(2) FILE AN AMENDED COMPLAINT ECF No. 1
JEREMY D. PETERSON, UNITED STATES MAGISTRATE JUDGE.
Plaintiff has filed a complaint alleging that defendants denied him access to courts by refusing to grant him timely use of the prison law library. ECF No. 1 at 4-6. The claim is not adequately pled, however. I will give plaintiff an opportunity to amend his complaint before recommending that it be dismissed. I will also grant plaintiff's application to proceed in forma pauperis. ECF No. 2
Screening and Pleading Requirements
A federal court must screen a prisoner's complaint that seeks relief against a governmental entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2).
A complaint must contain a short and plain statement that plaintiff is entitled to relief, Fed.R.Civ.P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its face, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere possibility of misconduct, ” the complaint states no claim. Id. at 679. The complaint need not identify “a precise legal theory.” Kobold v. Good Samaritan Reg'l Med. Ctr., 832 F.3d 1024, 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”-a set of “allegations that give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 n.2 (9th Cir. 2006) (en banc) (citations omitted).
The court must construe a pro se litigant's complaint liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant's complaint “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.'” Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
Analysis
As stated above, plaintiff alleges that defendants frustrated his access to the courts by failing to grant him timely use of the prison law library. Specifically, he claims that, after the United States Supreme Court denied his petition for writ of certiorari on November 9, 2020, his deadline for submitting a petition for rehearing was December 4, 2020. ECF No. 1 at 6, 23-24. To submit his petition for rehearing, he needed to make photocopies in the law library. Id. at 6. G. Burke, the librarian, invoked Covid-related restrictions and declined to allow him access to the law library until the deadline for his petition for rehearing had passed. Id. at 6. With respect to the other defendants, plaintiff alleges that he alerted them-either in person or via grievance forms-and that they failed to act. Id. at 6-9.
Plaintiff has failed to describe the underlying claim that was frustrated and, thus, has failed to state a viable access-to-courts claim. See Christopher v. Harbury, 536 U.S. 403, 415 (2002) (“Like any other element of an access claim, the underlying cause of action and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice to a defendant.”). Here, plaintiff alleges only that the underlying cause of action relates to a section 1983 case he filed challenging a conviction for assault with a deadly weapon. ECF No. 1 at 4. He does not, however, describe why the conviction was faulty or explain the lower courts' reasons for rejecting his claims. Further, he does not explain why, in light of the apparent denial of his claims at every appellate level, his petition for rehearing should be viewed as non-frivolous. Harbury, 536 U.S. at 416 (“Hence the need for care in requiring that the predicate claim be described well enough to apply the ‘nonfrivolous' test and to show that the ‘arguable' nature of the underlying claim is more than hope.”).
I will allow plaintiff a chance to amend his complaint before recommending that this action be dismissed. If plaintiff decides to file an amended complaint, the amended complaint will supersede the current complaint. See Lacey v. Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc). This means that the amended complaint will need to be complete on its face without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is filed, the current complaint no longer serves any function. Therefore, in an amended complaint, as in an original complaint, plaintiff will need to assert each claim and allege each defendant's involvement in sufficient detail. The amended complaint should be titled “Amended Complaint” and refer to the appropriate case number. If plaintiff does not file an amended complaint, I will recommend that this action be dismissed. Accordingly, it is ORDERED that:
1. Plaintiff's application to proceed in forma pauperis, ECF No. 2, is granted.
2. Within thirty days from the service of this order, plaintiff must either file an Amended Complaint or advise the court he wishes to stand by his current complaint. If he selects the latter option, I will recommend that this action be dismissed.
3. Failure to comply with this order may result in the dismissal of this action.
4. The Clerk of Court is directed to send plaintiff a complaint form.
IT IS SO ORDERED.