Summary
dismissing without leave to amend access to the courts claim because plaintiff's complaint alleged injury to only "his ability to litigate effectively after commencement of litigation," not his ability to bring a suit in the first place and thus he had not alleged actual injury
Summary of this case from Parrish v. SolisOpinion
No. C 02-3266 PJH (PR)
July 31, 2002
ORDER OF DISMISSAL
This is a pro se civil rights complaint under 42 U.S.C. § 1983 filed by a state prisoner. He has been granted leave to proceed in forma pauperis.
BACKGROUND
Plaintiff complains that defendant, the clerk of this court, did not respond to his letters.
DISCUSSION
A. Standard of Review
Federal courts must engage in a preliminary 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). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1), (2). Prose pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Although Plaintiff purports to bring this suit under 28 U.S.C. § 1983, that statute applies only to state actors. The defendant is a federal employee. However, a private right of action may be implied from the Constitution itself for allegations of constitutional violations made against federal employees or their agents. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392-97 (1971) (4th Amendment);see also Carlson v. Green, 446 U.S. 14, 17-19 (1980) (8th Amendment);Davis v. Passman, 442 U.S. 228 (1979) (Due Process Clause of 5th Amendment). Because Plaintiff is pro se, the complaint will be liberally construed as an attempt to state a Bivens claim. To state a claim underBivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and its progeny, plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the alleged violation was committed by a federal actor. See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) ( 42 U.S.C. § 1983 and Bivens actions are identical save for replacement of state actor under § 1983 by federal actor under Bivens).
B. Legal Claims
Plaintiff has filed a number of section 1983 cases in this court. The instructions on the court's form for filing such cases include this statement: "Because of the large volume of cases filed by inmates in this court and very limited court resources, the court can no longer answer inquiries regarding the status of your case. . . ." Nevertheless, plaintiff contends that defendant breached his constitutional right to access to the courts by not responding to his letters of inquiry about the status of his cases.
Plaintiff asserts that in one of his cases, Fitzhugh v. Rite-Aide, he received only a notice that the complaint had been filed and nothing else. That case was filed when plaintiff was housed at Pelican Bay State Prison. The court's subsequent orders, a partial dismissal with leave to amend and, when plaintiff did not amend, a dismissal of some claims and order for service of the others, were not returned by the post office as undeliverable. The only notice of change of address contained in theRite-Aide file is a notice that plaintiff was at the Santa Rita County Jail in Alameda as of February 18, 2002. It appears, however, that at some stage plaintiff was in San Quentin State Prison, and is now at Pleasant Valley State Prison. There are no notices of change of address for those prisons. More recently, counsel for defendant wrote to the court stating that he could not locate plaintiff, and that he appeared not to be in the state prison system. A subsequent letter from counsel stated that defendant's investigator had located plaintiff at Pleasant Valley State Prison. The court recently granted defendant's motion to depose plaintiff at that location.
In the Rite-Aide case, although plaintiff did not file a formal notice of change of address, the clerk apparently noted the return address on one of his letters and changed the address on the docket to San Quentin State Prison. A letter addressed to plaintiff at San Quentin was returned as undeliverable on July 22, 2002. There is no notice of change of address to Pleasant Valley State Prison in the file, and no letter of inquiry or filing by plaintiff showing that return address. Although it might be desirable if the clerk could compare the return address of every letter and filing with the address on the docket, to determine if it has changed, the workload of the clerk precludes this. A formal notice of change of address, so the clerk is alerted to the change, is necessary. In some cases the clerk might catch the discrepancy and change the address, as occurred in Rite-Aide when plaintiff moved to San Quentin, but this cannot be relied upon. It is also necessary that such notices either carry the docket numbers of all of a plaintiff's cases, or that separate notices be filed in every open case, preferably the latter. That is, plaintiff cannot rely on a notice of change of address directed to a specific case resulting in a change of address in all his cases. This is even more true as to the address on a complaint commencing a new case — for instance, in this case plaintiff gives his address as Pleasant Valley State Prison, but the mere fact that he has done so cannot, as a practical matter, result in the clerk searching for all the cases he might have open and changing the address for any in which no notice of change of address has been filed.
The instructions for the court's civil rights complaint form also contains this: "It is your responsibility to keep the court informed of any changes of address to ensure you receive court orders. Failure to do so may result in dismissal of your action." The order of service in theRite-Aide case also contained this language: "Plaintiff must keep the Court informed of any change of address by filing a separate paper with the clerk headed `Notice of Change of Address. . . ." of course, if plaintiff did not receive the order, as he claims, he may not have seen this.
It appears that some of the difficulty in the Rite-Aide case was caused by plaintiff's failure to keep the court informed of his current address.
1. Access to courts claim
Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). In Sands v. Lewis, 886 F.2d 1166 (1989), the Ninth Circuit divided such cases into two categories: (1) Those which assert inadequate law libraries or alternative sources of legal knowledge sufficient to prepare a suit, and (2) all others. Id. at 1171. As to the second category, the court required proof of "actual injury" to state a claim.Id. The court did not require actual injury for the first category id., but that part of the holding was overruled by Lewis v. Casey, 518 U.S. 343, 350-55 (1996). In short, whether a prisoner's claim is that a prison law library is inadequate or is that official action somehow blocked his access to the court, he or she must allege "actual injury."
"Actual injury" is defined as the prisoner being hindered in his efforts to pursue a non-frivolous claim concerning his conviction or conditions of confinement. Id. at 354-55. "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. The right of access to the court is limited to the initiation of a court action. The state is not required to enable the prisoner to discover grievances or to litigate effectively once in court. Id. at 354.
Plaintiff does not allege actual injury under this standard, and because his claim involves his ability to litigate effectively after commencement of litigation, it is clear he cannot. For this reason, as well as those discussed below, the case will be dismissed without leave to amend.
It does not appear that plaintiffs ability to litigate effectively was actually compromised. One of his case, C 02-02447 PJH (PR), Fitzhugh v. Lewis, which involved events at Pleasant Valley State Prison, was transferred to the United States District Court for the Eastern District of California, in which court's venue the prison lies. Plaintiff has filed a number of documents in that case in the Eastern District, so it is evident his ability to litigate the case was not hindered. Another, C 02-1985 PJH (PR), Fitzhugh v. Knobelauch, has recently been dismissed with leave to amend; because plaintiff filed a notice of change of address in that case, the order was mailed to the correct address. C 02-1923, Fitzhugh v. BPT, was dismissed without prejudice because plaintiff alleged that he had an action going to the same conviction pending in state court. Although the order was sent to San Quentin State Prison because a notice of change of address had only been filed the day before the dismissal, plaintiff has written to the court stating that he "accepts" the court's ruling, so it is apparent he received the order. In C 01-3400 PJH (PR), Fitzhugh v. Casio, the court recently entered an order dismissing some of plaintiff's claims and ordering service on some defendants. The court has instructed the clerk to re-send a copy of the order to the current address. C 01-0055 PJH (PR), Fitzhugh v. Rite-Aide, is discussed in the text above. C 02-3094 PJH (PR), Fitzhugh v. Lewis, filed recently, has not yet been reviewed. Three of these cases, C 02-1985 PJH (PR), C 01-3400 PJH (PR), and C 01-0055 PJH (PR), involve similar claims that plaintiff was mistreated by police when arrested for shoplifting; as they do not go to the validity of his conviction or to the conditions of his confinement, under Lewis they are cases as to which plaintiff does not have a constitutional right of access to the courts.See 518 U.S. at 355.
2. Immunity
Plaintiff requests both damages and injunctive relief. The Ninth Circuit has held that federal judges and federal clerks of court are immune from such claims. Mullis v. United States Bankruptcy Court, 828 F.3d 1385, 1391-1393 (9th Cir. 1987) (discussing distinction betweenBivens actions against judges and clerks acting under color of federal law and section 1983 actions against judges and clerks acting under color of state law; holding that federal judges and clerks of court are immune from both damages claims and injunctive relief claims). Given the nature of the claims and defendant's immunity, no amendment could remedy this deficiency. For this additional reason the case will be dismissed without leave to amend.
3. Injury
As discussed above, plaintiff has suffered no injury. To extent he claims any injury other than to the progress of his cases, it is psychological, as indeed he specifically alleges. The Prisoner Litigation Reform Act (PLRA) provides that prisoners may recover for mental or emotional injuries suffered while incarcerated only if they first show that they suffered a physical injury. See 42 U.S.C. § 1997e(e). Plaintiff has not alleged a physical injury, and it is clear from the nature of the claims that he could not. For this additional reason the case will be dismissed without leave to amend.
CONCLUSION
For the reasons set out above, this action is DISMISSED with prejudice.
The Clerk shall close the file.
SO ORDERED.