1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3

FROYLAN MEDINA CHIPREZ,

4 Case No. 20-cv-00307-YGR (PR) Plaintiff, 5 ORDER OF PARTIAL DISMISSAL; v. AND DISMISSING AMENDED 6 COMPLAINT WITH LEAVE TO

CORRECTIONAL OFFICER AMEND

7 FRANCO, et al.,

8 Defendants.

9 I. INTRODUCTION 10 Plaintiff, a state prisoner currently incarcerated at the California Substance Abuse and 11 Treatment Facility (“CSATF”) and proceeding pro se, filed the above-titled civil rights action 12 under 42 U.S.C. § 1983 stemming for alleged constitutional violations that took place at Salinas 13 Valley State Prison (“SVSP”), where he was previously incarcerated. The Court has granted 14 Plaintiff’s motion for leave to proceed in forma pauperis. Dkt. 6. 15 The original complaint was dismissed with leave to amend. Dkt. 7. Thereafter, Plaintiff 16 filed his amended complaint, which is the operative complaint in this action. Dkt. 8. When he 17 filed his original complaint, Plaintiff had named the following Defendants: California Attorney 18 General Xavier Becerra; Former Attorney General Kamala D. Harris; Former Senior Assistant 19 Attorney General Julie L. Garland; Former Supervising Deputy Attorney Generals Eric A. 20 Swenson and Robin Urbanski; Former Deputy Attorney Generals Kristine A. Gutierrez and Lynne 21 G. McGinnis; Deputy Attorney General Heidi Salerno; SVSP Warden M. L. Muniz; and SVSP 22 Lieutenant Poodry. He also named the following Doe Defendants at SVSP: Assistant Warden; 23 Watch Commander; I.G.I.; Mailroom Sergeant; B-Yard Captain; and B-Yard Sergeants. Dkt. 1 at 24 11.1 Lastly, Plaintiff had listed several Defendants from CSATF, who have all been dismissed 25 from this action without prejudice to Plaintiff’s filing separate actions asserting those claims in the 26

27 1 Page number citations refer to those assigned by the court’s electronic case management 1 United States District Court for the Eastern District of California, which is the proper venue for 2 claims based on acts and omissions at CSATF. Dkt. 7 at 1-2. Plaintiff originally sought 3 injunctive relief as well as monetary and punitive damages. Id. at 13. 4 In his amended complaint, Plaintiff has again named a few Doe Defendants from SVSP, 5 who he describes as follows: (1) “B-Yard 3rd Watch [Correctional Officer] that received Federal 6 Writ on 2-15-2018 SVSP B-4-127”; and (2) “[Correctional Officer] [in Administrative 7 Segregation (“Ad Seg”)] Z-9 who received 4-01-2018 legal document on 3rd Watch.” Dkt. 8 at 4. 8 And Plaintiff has named the following new Defendants at SVSP: Correctional Officers Franco and 9 Carmona. Id. Therefore, since Plaintiff has not named any of the remaining named Defendants 10 from his original complaint, the Court DISMISSES without prejudice all claims against: 11 Defendants Becerra, Harris, Garland, Swenson, Urbanski, Gutierrez, McGinnis, Salerno, Muniz, 12 and Poodry. The Court also DISMISSES without prejudice the following Doe Defendants at 13 SVSP: Assistant Warden; Watch Commander, I.G.I., Mailroom Sergeant, and B-Yard Captain; 14 and B-Yard Sergeants. 15 The amended complaint is now before the Court for review pursuant to 28 U.S.C. 16 § 1915A(a). 17 II. DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro 24 se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 25 699 (9th Cir. 1988). 26 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 27 relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell 1 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 2 defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). 3 Furthermore, a court “is not required to accept legal conclusions cast in the form of factual 4 allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult 5 Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). To state a claim under 42 U.S.C. 6 § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution 7 or laws of the United States was violated, and (2) that the alleged violation was committed by a 8 person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 9 B. Legal Claims 10 In his amended complaint, Plaintiff states the following claims involving Doe Defendants: 11 (1) denial of access to the courts by a Doe Defendant described as “B-Yard 3rd Watch 12 [Correctional Officer] that received Federal Writ on 2-15-2018 SVSP B-4-127” because this Doe 13 Defendant “illegally held and forged” this legal document from February 15, 2018 until March 6, 14 2018, Dkt. 8 at 6; and (2) denial of access to the courts by a Doe Defendant described as 15 “[Correctional Officer] [in Administrative Segregation (“Ad Seg”)] Z-9 who received 4-01-2018 16 legal document on 3rd Watch” because this Doe Defendant allowed the legal document to be 17 “ripped open by prison officials and returned to [Plaintiff] in a clear plastic bag with a notice from 18 [the] mailroom sergeant on 4-02-2018,” id. at 7. Plaintiff claims that “[d]ue to this abuse of 19 authority, [his] Federal Habeas Writ was denied [as] ‘untimely’ (See Case #5:18-cv-501 Report 20 and Recommendation, Judge Rozella A. Oliver.[)].” Id. at 8. Plaintiff now claims that he “does 21 not seek monetary relief,” and instead “asks this Court for an investigation on said allegations.” 22 Id. at 3. 23 Inmates have a right under the federal constitution to access the courts. The destruction or 24 confiscation of an inmate’s legal papers may violate his constitutional right of access to the courts 25 if it causes him an “actual injury” to court access, i.e., some specific instance in which an inmate 26 was actually denied access to the courts. See Silva v. Di Vittorio, 658 F.3d 1090, 1101-03 & n.8 27 (9th Cir. 2011), overruled on other grounds in Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 1 dismissed adequately alleged an actual injury); Vigliotto v. Terry, 873 F.2d 1201 (9th Cir. 1989) 2 (temporary deprivation of legal materials from inmate’s cell did not deprive him of meaningful 3 access to the courts). Liberally construed, Plaintiff’s allegations that the aforementioned Doe 4 Defendants withheld and tampered with his legal documents appear to state a cognizable section 5 1983 claim for interfering with Plaintiff’s right of access to the courts. However, regarding these 6 Doe Defendants, Plaintiff describes them but does not know their names. Dkt. 8 at 4. Although 7 the use of “John Doe” to identify a defendant is not favored in the Ninth Circuit, see Gillespie v. 8 Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wiltsie v. Cal. Dep’t of Corrections, 406 F.2d 515, 9 518 (9th Cir. 1968), situations may arise where the identity of alleged defendants cannot be known 10 prior to the filing of a complaint. In such circumstances, the plaintiff should be given an 11 opportunity through discovery to identify the unknown defendants, unless it is clear that discovery 12 would not uncover their identities or that the complaint should be dismissed on other grounds. See 13 Gillespie, 629 F.2d at 642; Velasquez v. Senko, 643 F. Supp. 1172, 1180 (N.D. Cal. 1986). 14 Plaintiff’s amended complaint is therefore dismissed with leave to amend for Plaintiff to provide 15 to the Court the names of these Doe Defendants. Failure to do so will result in dismissal of these 16 Doe Defendants without prejudice to Plaintiff filing a new action against him or her. 17 As to the remaining named Defendants in the amended complaint—Defendants Franco and 18 Carmona—Plaintiff fails to set forth specific facts showing how each of these defendants actually 19 and proximately caused the deprivation of a federally protected right, e.g., Plaintiff mentions 20 these defendants in the list of defendants section of his complaint, but does not allege how either 21 of them actually and proximately caused the deprivation of the federally protected rights of which 22 he complains. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Nor is it clear whether 23 SVSP Librarian Colvin and the other mentioned unnamed SVSP prison staff members are 24 defendants in this action because Plaintiff did not include them in the caption or in the list of 25 defendants section of his complaint. See Barsten v. Dep’t of the Interior, 896 F.2d 422, 423-24 26 (9th Cir. 1990) (plaintiff should be given leave to amend to name intended defendants). If 27 Plaintiff wishes to add Librarian Colvin or any of the other unnamed SVSP prison staff members 1 actually and proximately caused the deprivation of a federally protected right, and Plaintiff must 2 also provide to the Court the names of any of these Doe Defendants. 3 III. CONCLUSION 4 For the foregoing reasons, the Court orders as follows: 5 1. The Court DISMISSES without prejudice all claims against Defendants Becerra, 6 Harris, Garland, Swenson, Urbanski, Gutierrez, McGinnis, Salerno, Muniz, and Poodry. The 7 Court also DISMISSES without prejudice all claims against the following Doe Defendants at 8 SVSP: Assistant Warden; Watch Commander; I.G.I.; Mailroom Sergeant; and B-Yard Captain; 9 and B-Yard Sergeants. 10 2. The amended complaint is DISMISSED WITH LEAVE TO AMEND. Within 11 twenty-eight (28) days from the date of this Order, Plaintiff shall file a second amended 12 complaint (“SAC”) correcting the aforementioned deficiencies of his claims against Defendants, 13 as indicated above. In his SAC, Plaintiff needs to link each remaining named Defendant— 14 including Defendants Franco and Carmona—to his claim by alleging facts showing the basis for 15 liability for each individual defendant. Plaintiff should identify each involved person by name and 16 link each of them to his claim by explaining what each defendant did or failed to do that caused a 17 violation of his constitutional rights. See Leer, 844 F.2d at 634. 18 In addition, Plaintiff’s new allegations in his amended complaint that certain Doe 19 Defendants tampered with his legal documents appear to state a cognizable section 1983 claim for 20 interfering with Plaintiff’s right of access to the courts. In his SAC, Plaintiff must provide to the 21 Court the names of the following Doe Defendants: “B-Yard 3rd Watch [Correctional Officer] that 22 received Federal Writ on 2-15-2018 SVSP B-4-127”; and (2) “[Correctional Officer] [in 23 Administrative Segregation (“Ad Seg”)] Z-9 who received 4-01-2018 legal document on 3rd 24 Watch.” Failure to do so will result in dismissal of these Doe Defendants without prejudice to 25 Plaintiff filing a new action against him or her. 26 3. Plaintiff must use the attached civil rights form, write the case number for this 27 action—Case No. 20-cv-00307-YGR (PR)—on the form, clearly label it “Second Amended 1 original and amended complaints, Plaintiff must include in it all the claims he wishes to present. 2 See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915 (1992); King v. 3 Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th 4 || Cir. 1981). He may not incorporate material from the original and amended complaints by 5 reference. He must also specify whether he exhausted or was prevented from exhausting his 6 administrative remedies with respect to any or all of those claims before filing this action. 7 Plaintiff’s failure to file a SAC or to correct the aforementioned deficiencies by the twenty- 8 || eight day deadline will result in the dismissal of this action without prejudice. 9 4. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 10 || informed of any change of address and must comply with the court’s orders in a timely fashion. 11 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes 12 || while an action is pending must promptly file a notice of change of address specifying the new 13 address. See L.R. 3-11(a). The court may dismiss without prejudice a complaint when: (1) mail 14 || directed to the pro se party by the court has been returned to the court as not deliverable, and 3 15 (2) the court fails to receive within sixty days of this return a written communication from the pro a 16 || se party indicating a current address. See L.R. 3-11(b).

IT IS SO ORDERED.

18 Dated: January 13, 2021 19 Laceee Hag oles □

J E YVONNE GON EZ ROGERS

20 nited States District Judge 21 22 23 24 25 26 27 28