Sanchez v. Rose

[2] 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 JASMINE PAUL SANCHEZ, Case No. 3:21-cv-00475-MMD-CLB 7 Plaintiff, SCREENING ORDER ON v. FIRST AMENDED COMPLAINT [8] SANDRA ROSE, [9] Defendant. [10] 11 I. SUMMARY 12 Plaintiff Jasmine Paul Sanchez, who is incarcerated in the custody of the Nevada 13 Department of Corrections (“NDOC”), has submitted a first amended civil rights complaint 14 (“FAC”) pursuant to 42 U.S.C. § 1983 , and has filed an application to proceed in forma 15 pauperis. (ECF Nos. 4, 9.) The Court now grants the application to proceed in forma 16 pauperis and screens Plaintiff’s FAC under 28 U.S.C. § 1915A. 17 II. IN FORMA PAUPERIS APPLICATION 18 Plaintiff’s application to proceed in forma pauperis is granted. (ECF No. 4.) Based 19 on the information regarding Plaintiff’s financial status, the Court finds that Plaintiff is not 20 able to pay an initial installment payment toward the full filing fee pursuant to 28 U.S.C. § 21 1915. Plaintiff will, however, be required to make monthly payments toward the full 22 $350.00 filing fee when he has funds available. 23 III. SCREENING STANDARD 24 Federal courts must conduct a preliminary screening in any case in which an 25 incarcerated person seeks redress from a governmental entity or officer or employee of 26 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify 27 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 28 claim upon which relief may be granted, or seek monetary relief from a defendant who is 2 be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 3 1990). To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential 4 elements: (1) the violation of a right secured by the Constitution or laws of the United 5 States; and (2) that the alleged violation was committed by a person acting under color 6 of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 7 In addition to the screening requirements under § 1915A, under the Prison 8 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 9 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 10 to state a claim on which relief may be granted, or seeks monetary relief against a 11 defendant who is immune from such relief.” 28 U.S.C. § 1915 (e)(2). Dismissal of a 12 complaint for failure to state a claim upon which relief can be granted is provided for in 13 Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under 14 § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 15 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 16 the complaint with directions as to curing its deficiencies, unless it is clear from the face 17 of the complaint that the deficiencies could not be cured by amendment. See Cato v. 18 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 19 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 20 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to 21 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 22 support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 23 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all 24 allegations of material fact stated in the complaint, and the Court construes them in the 25 light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th 26 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 27 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 28 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff [2] 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 3 insufficient. See id. 4 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 5 that, because they are no more than mere conclusions, are not entitled to the assumption 6 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide 7 the framework of a complaint, they must be supported with factual allegations.” Id. “When 8 there are well-pleaded factual allegations, a court should assume their veracity and then 9 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining 10 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 11 requires the reviewing court to draw on its judicial experience and common sense.” Id. 12 Finally, all or part of a complaint filed by an incarcerated person may be dismissed 13 sua sponte if that person’s claims lack an arguable basis either in law or in fact. This 14 includes claims based on legal conclusions that are untenable (e.g., claims against 15 defendants who are immune from suit or claims of infringement of a legal interest which 16 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 17 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); 18 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 19 IV. SCREENING OF FAC 20 On March 14, 2022, the Court issued a screening order dismissing the Complaint 21 without prejudice with leave to amend because Plaintiff failed to state a colorable claim 22 for denial of access to the courts against Defendant Ely State Prison (“ESP”) Law Library 23 Supervisor Sandra Rose. (ECF No. 6 at 4-5.) The Court granted Plaintiff leave to file an 24 amended complaint to demonstrate that Rose caused him actual injury in a non-frivolous 25 direct criminal appeal, habeas corpus proceeding, or § 1983 action. (Id. at 4.) 26 In his FAC, Plaintiff again sues Defendant Rose for events that took place while 27 Plaintiff was incarcerated at ESP. (ECF No. 9 at 1-2.) Plaintiff brings one claim and seeks 28 monetary relief. (Id. at 8-9.) 2 Plaintiff’s legal requests including legal paperwork, legal supplies, legal documents, and 3 a simple request of a list of courts. (Id. at 3.) By denying Plaintiff’s requests, Rose caused 4 Plaintiff’s cases to be dismissed with prejudice even when he was trying to request notices 5 of appeal. (Id. at 9.) Rose denied Plaintiff’s requests knowing that Plaintiff would be 6 charged and would not be able to refile complaints in 3:18-cv-373-MMD-WGC, 3:19-4817 MMD-WGC, and 3:21-cv-292-MMD-CLB. (Id.) Without Rose providing Plaintiff’s 8 requests, there was no way for Plaintiff to get the proper legal papers to file appeals, 9 habeas corpus cases, or criminal appeals. (Id.) Plaintiff made requests for legal 10 documents for pending cases, but Rose denied him and now those cases are dismissed 11 with prejudice. (Id.) Rose denied Plaintiff access to the courts. (Id.) Rose denied Plaintiff’s 12 request for an application to proceed in forma pauperis and then the Court denied 13 Plaintiff’s case with prejudice because he did not meet the deadline. (Id.) Plaintiff alleges 14 denial of access to the courts. (Id.) 15 Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, [16] 518 U.S. 343, 346 (1996). To establish a violation of the right of access to the courts, a 17 prisoner must establish that he or she has suffered an actual injury, a jurisdictional 18 requirement that flows from the standing doctrine and may not be waived. See id. at 349 . 19 An “actual injury” is “actual prejudice with respect to contemplated or existing litigation, 20 such as the inability to meet a filing deadline or to present a claim.” Id. at 348 . Delays in 21 providing legal materials or assistance that result in actual injury are “not of constitutional 22 significance” if “they are the product of prison regulations reasonably related to legitimate 23 penological interests.” Id. at 362 . The right of access to the courts is limited to non24 frivolous direct criminal appeals, habeas corpus proceedings, and § 1983 actions. See id. 25 at 353 n.3, 354-55. 26 The Court finds that once again Plaintiff fails to allege a colorable denial of access 27 to the courts claim against Defendant Rose. Plaintiff’s allegations are vague and 28 conclusory and do not demonstrate how Rose’s actions caused Plaintiff actual prejudice 2 Plaintiff seems to argue that Rose did not give him a form to file a notice of appeal causing 3 the district court to dismiss his cases with prejudice. However, a district court’s dismissal 4 is separate and distinct from Plaintiff’s desire to file a notice of appeal. Thus, even if 5 Plaintiff could not get a form notice of appeal from Rose, this would not have caused the 6 district court to dismiss Plaintiff’s cases with prejudice. 7 Additionally, with respect to the three specific § 1983 cases that Plaintiff identifies, 8 the Court takes judicial notice that Plaintiff did file notices of appeal in two of those cases. 9 See Sanchez v. Ely State Prison, 3:18-cv-00373-MMD-WGC (appeal denied by Ninth 10 Circuit as frivolous); Sanchez v. Ely State Prison et al, 3:21-cv-00292-MMD-CLB (appeal 11 pending before the Ninth Circuit). Although Plaintiff did not file an appeal in Sanchez v. 12 Homan et al, 3:19-cv-00481-MMD-WGC, there are no allegations demonstrating how 13 Rose prevented him from pursuing an appeal. Although Plaintiff states that she did not 14 give him a form, Plaintiff is not required to file a notice of appeal on a certain form and, 15 thus, not having a notice of appeal form would not prevent Plaintiff from filing an appeal. 16 See Fed. R. App. P. 3(c)(1) (describing the contents of a notice of appeal); Fed. R. App. 17 P. 3 (c)(7) (stating that “[a]n appeal must not be dismissed for informality of form or title of 18 the notice of appeal”). As such, Plaintiff cannot demonstrate that Rose caused actual 19 injury in any of his cases. 20 Because Plaintiff again fails to demonstrate that Rose caused actual injury in his 21 cases, the Court dismisses the FAC with prejudice for failure to state a claim and without 22 leave to amend because amendment would be futile. See Zucco Partners, LLC v. 23 Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (leave to amend not required when 24 the plaintiff was previously allowed to amend but failed to correct identified deficiencies). 25 V. CONCLUSION 26 It is therefore ordered that Plaintiff's application to proceed in forma pauperis (ECF 27 No. 4) without having to prepay the full filing fee is granted. Plaintiff will not be required to 28 pay an initial installment fee. Nevertheless, the full filing fee will still be due, pursuant to 1 || 28 U.S.C. § 1915 , as amended by the Prison Litigation Reform Act. The movant herein is 2 || permitted to maintain this action to conclusion without the necessity of prepayment of fees 3 || or costs or the giving of security therefor. 4 It is further ordered that, pursuant to 28 U.S.C. § 1915 , as amended by the Prison 5 || Litigation Reform Act, the Nevada Department of Corrections will forward payments from 6 || the account of Jasmine Paul Sanchez, #1148512 to the Clerk of Court, 20% of the 7 || preceding month's deposits (in months that the account exceeds $10.00) until the full 8 || $350 filing fee has been paid for this action. The Clerk of Court will send a copy of this 9 || order to the Finance Division of the Clerk's Office. The Clerk of Court will send a copy of 10 || this order to the attention of Chief of Inmate Services for the Nevada Department of 11 || Corrections, P.O. Box 7011, Carson City, NV 89702. 12 It is further ordered that, even if this action is dismissed, or is otherwise 13 || unsuccessful, the full filing fee will still be due, pursuant to 28 U.S.C. § 1915 , as amended 14 || by the Prison Litigation Reform Act. 15 It is further ordered that the operative complaint is the FAC (ECF No. 9). 16 It is further ordered that the FAC (ECF No. 9) is dismissed with prejudice in its 17 || entirety for failure to state a claim and without leave to amend because amendment would 18 || be futile. 19 It is further ordered that this Court certifies that any in forma pauperis appeal from 20 || this order would not be taken “in good faith” pursuant to 28 U.S.C. § 1915 (a)(3). 21 DATED THIS 16" Day of May 2022. 22 ——~ 23 {Sh 24 MIRANDA M-DU 35 CHIEF UNITED STATES DISTRICT JUDGE