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 DISMISSAL v. 6

M. ADAME,

7 Defendant. 8

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. Plaintiff has been granted 14 leave to proceed in forma pauperis. Dkt. 6. 15 The operative complaint is the fourth amended complaint (“4AC”). Dkt. 21. 16 Venue is proper because the events giving rise to plaintiff’s claims are alleged to have 17 occurred at SVSP, which is located in this judicial district. See 28 U.S.C. § 1391(b). 18 The 4AC is now before the Court for review pursuant to 28 U.S.C. § 1915A(a). 19 II. BACKGROUND 20 In its July 7, 2022 Order, the Court outlined the defendants who plaintiff named in his 21 previous complaints, and it also included the following background on his claims:

22 The original complaint was dismissed with leave to amend. Dkt. 7. Thereafter, plaintiff filed his amended complaint. Dkt. 8. When he 23 filed his original complaint, plaintiff had named the following defendants: California Attorney General Xavier Becerra; Former 24 Attorney General Kamala D. Harris; Former Senior Assistant Attorney General Julie L. Garland; Former Supervising Deputy 25 Attorney Generals Eric A. Swenson and Robin Urbanski; Former Deputy Attorney Generals Kristine A. Gutierrez and Lynne G. 26 McGinnis; Deputy Attorney General Heidi Salerno; SVSP Warden M. L. Muniz; and SVSP Lieutenant Poodry. He also named the 27 following doe defendants at SVSP: Assistant Warden; Watch defendants from CSATF, who have all been dismissed from this 1 action without prejudice to plaintiff’s filing separate actions asserting those claims in the United States District Court for the Eastern District 2 of California, which is the proper venue for 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. As mentioned above, the Court dismissed the complaint with leave to 4 amend. See Dkt. 7.

5 [FN 1:] Page number citations refer to those assigned by the Court’s electronic case management filing system and not those assigned by 6 plaintiff.

7 In his amended complaint, plaintiff again named a few doe defendants from SVSP, who he described as follows: (1) “B-Yard 3rd Watch 8 [Correctional Officer] that received Federal Writ on 2-15-2018 SVSP B-4-127”; and (2) “[Correctional Officer] [in Administrative 9 Segregation (“Ad Seg”)] Z-9 who received 4-01-2018 legal document on 3rd Watch.” Dkt. 8 at 4. And plaintiff also named the following 10 defendants at SVSP: Correctional Officers Franco and Carmona. Id. Therefore, in its January 13, 2021 Order, because plaintiff did not 11 name any of the remaining named defendants from his original complaint, the Court dismissed without prejudice all claims against 12 defendants Becerra, Harris, Garland, Swenson, Urbanski, Gutierrez, McGinnis, Salerno, Muniz, and Poodry. Dkt. 9 at 2. The Court also 13 dismissed without prejudice the following doe defendants at SVSP: Assistant Warden; Watch Commander, I.G.I., Mailroom Sergeant, 14 and B-Yard Captain; and B-Yard Sergeants. Id. The Court then dismissed the amended complaint with leave to amend. Id. at 3-5. 15 In his SAC, plaintiff named four defendants. Dkt. 17 at 2. He again 16 named defendants Franco and Carmona from his amended complaint. Id. He also again named SVSP Lieutenant Poodry, who he had named 17 in his original complaint. Id. And he added one new defendant: SVSP Officer M. Adame. Id. In an Order dated January 13, 2022, the Court 18 listed the claims in the SAC as follows:

19 In his SAC, plaintiff alleges that that (1) on March 6, 2018, defendant Adame “sent out [plaintiff’s] 2-15-2018 legal 20 mail,” which was “nineteen days after it was handed over to B yard Building 4 3rd watch officer John Doe,” and the Court 21 “denied [his] habeas, ruling it ‘untimely,’” Dkt. 17 at 5; (2) on an unknown date, plaintiff asked defendant Franco to 22 pick up [his] legal mail as defendant Franco was picking up mail and legal mail on numerous occasions,” but defendant 23 Franco “refused to pick up [plaintiff’s] legal mail,” id. at 6; (3) on April 2, 2018, defendant Carmona “returned ripped 24 opened 4-01-2018 legal mail,” told plaintiff to “re-package and send [it] back out,” and then refused to pick up plaintiff’s 25 legal mail, which was sent out on April 3, 2018 by another officer, id. at 7; and (4) on March 3, 2018, plaintiff requested 26 to be removed by B-yard at SVSP due to “safety concerns,” and while plaintiff awaiting removal, defendant Poodry 27 stated “send him back he does not even have a scratch on Dkt. 18 at 4. 1 The Court dismissed plaintiff’s claims in the SAC with leave to 2 amend because they violated Federal Rule of Civil Procedure 20, which requires that a plaintiff cannot assert unrelated claims against 3 different defendants. Id. at 3-4. The Court noted that his claims in the SAC 4 involving the four defendants committing different acts at 5 different times during three-month time frame (from February 2018 through April 2018), [were] unrelated by act 6 or law. As plaintiff has been warned before, such claims run afoul of Federal Rule of Civil Procedure 20. Nowhere does 7 plaintiff attempt to link these disparate events, and thus he does not justify the inclusion of these disparate claims in one 8 action.

9 Id. at 4-5. Thus, the Court further found that “Claim 1, which is the earliest in time in February 2018, may not proceed as alleged because 10 plaintiff has not stated a cognizable claim for relief, but it may eventually go forward if plaintiff cures certain deficiencies.” Id. at 5. 11 The Court instructed as follows: 12 [P]laintiff will be given an opportunity to cure the 13 aforementioned deficiencies to Claim 1 by way of a filing a third amended complaint, as directed below. All the 14 remaining claims—Claims 2 through 4 against defendants Franco, Carmona and Poodry—are DISMISSED without 15 prejudice to plaintiff bringing them in separate actions, either in state or federal court. 16 Id. at 7. 17 Dkt. 20 at 1-3. 18 In plaintiff’s third amended complaint (“TAC”), he alleged that defendant Adame denied 19 plaintiff meaningful access to the courts by causing a nineteen-day delay of mailing plaintiff’s 20 “Federal Writ.” Dkt. 19 at 6. Plaintiff included the following background relating to Claim 1 21 taken from the Court’s July 7, 2022 Order, which states: 22 On 2-15-2018, Petitioner handed his completed Federal Writ to a[n] 23 SVSP Facility B. Building 4, Third Watch Staff, he was a white American who I will refer to as: C.O. John Doe. 24 The Federal Writ, Case No.: cv 501AGRA0, was handed to C.O. John 25 Doe on 2-15-2018, at that moment, Staff was required by Departmental Procedures, to search the envelope/mail contents then, 26 watch as the envelope is sealed, then, Staff is required to place his signature along with the date on the back of the outgoing “Legal 27 Mail.” Federal Address, of a Federal Court, was mail to the Federal District 1 Court, 19 days later by M. Adame, without a notice explaining the abnormal delay? 2 The Federal Writ is required by Law, State and Federal Law, to be 3 sent out without unexplained unlawful delays[.] Staff are prohibited from tampering with the contents within the Writ, nor are they 4 allowed to tamper with forgering [sic] with signatures and handwritten dates on the back of the “Legal Mail.” 5 The SVSP Administration, and the Correctional Staff assigned to 6 perform their lawful duties within B Facility and the Mail Room, have no authority, nor lawful reason, to maliciously withhold [plaintiff’s] 7 valid Federal Writ, which includes his assertion of innocence, and his due diligence in redressing a grievance that is unjustly restraining his 8 Liberty Interest . . . .

9 Dkt. 20 at 5 (citing at Dkt. 19 at 6-7 (brackets added)).1 However, the Court concluded that 10 plaintiff “does not elaborate in the body of the complaint about how he was injured by the 11 delayed mailing.” Id. (citing Dkt. 19 at 4-9) (emphasis in original). The Court determined that 12 “even after amending Claim 1 in his TAC (i.e., he has since clarified that the delayed legal mail 13 was his “Federal Writ”), plaintiff still fails to provide enough information to show that it was 14 defendant Adame’s actions that interfered with plaintiff’s ability to petition the 15 government.” Id. at 7 (emphasis in original). The Court further pointed deficiencies in his TAC 16 and noted as follows: 17 Even liberally construed, his allegations appear to show only a 18 temporary delay in plaintiff’s mail, which is insufficient to state a claim for relief under Section 1983 for a violation of his First 19 Amendment rights. See Smith [v. Maschner], 899 F.2d [940,] 944 [(10th Cir. 1990)]. The Court finds that the current allegations 20 referenced from the TAC are insufficient to show actual injury as plaintiff has failed to state facts showing how defendant Adame’s 21 nineteen-day delay of sending out the “Federal Writ” prevented plaintiff from meeting a court deadline. See Dkt. 19 at 6-7, 10. 22 Plaintiff’s conclusory allegation that this referenced delay led to his “Federal Writ” to be “untimely,” id. at 10, is insufficient to show 23 defendant Adame’s liability. The Court further notes that plaintiff has 24 1 The Court further noted that plaintiff also included unrelated allegations pertaining to 25 alleged claims of deliberate indifference by prison staff based on threats from another inmate named Johny Martinez. See Dkt. 19 at 4-9. However, the Court summarily dismissed these 26 claims upon finding that they ran “afoul of Federal Rule of Civil Procedure 20. . . . .” Dkt. 20 at 5 fn. 2 (citing Fed. R. Civ. P. 20(a)). Thus, the Court pointed out that it would “only focus on 27 plaintiff’s allegations relating to Claim 1.” Id. not provided any information about his federal habeas action, i.e., a 1 case number or a copy of an order dismissing his “Federal Writ” as untimely.[FN 3] Therefore, plaintiff shall be given one final 2 opportunity to amend this claim if he can provide such information.

3 [FN 3:] The Court notes that the only prior habeas action plaintiff filed is Case No. 17-04829-LHK (PR), and that action was dismissed for 4 in forma pauperis deficiency on October 12, 2017—four months before the alleged nineteen-day mail delay by defendant Adame in 5 February 2018. See Dkt. 10 in Case No. 17-04829-LHK (PR). The Court’s docket for Case No. 17-04829-LHK (PR) further indicates 6 that no other filing was submitted by plaintiff after that action was closed on October 12, 2017. 7 In amending this claim, plaintiff is advised that liability may be 8 imposed on an individual defendant under section 1983 only if he can show that the defendant proximately caused the deprivation of a 9 federally protected right, i.e., plaintiff’s right of access to the courts. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City 10 of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a constitutional right within the meaning of section 1983 if 11 he does an affirmative act, participates in another’s affirmative act or omits to perform an act which he is legally required to do, that causes 12 the deprivation of which the plaintiff complains. See Leer, 844 F.2d at 633. 13 14 Dkt. 20 at 7 (brackets added). Thus, as mentioned, the Court granted plaintiff “one final 15 opportunity to cure the aforementioned deficiencies to Claim 1 by way of a filing a fourth 16 amended complaint . . . .” Id. (emphasis in original). 17 Plaintiff has since filed his 4AC. Dkt. 21. For the reasons set forth below, the Court 18 DISMISSES the 4AC for failure to state a claim for relief. 19 III. DISCUSSION 20 A. Standard of Review 21 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 22 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 23 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 24 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 25 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 26 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 27 Cir. 1988). 1 namely that: (1) a right secured by the Constitution or laws of the United States was violated, and 2 (2) the alleged violation was committed by a person acting under the color of state law. West v. 3 Atkins, 487 U.S. 42, 48 (1988). 4 B. Legal Claim – Claim 1 5 The Court finds that Claim 1, which is the earliest in time in February 2018, may not 6 proceed as alleged because, even though plaintiff was given one final opportunity to correct the 7 deficiencies pointed out in its July 7, 2022 Order, see Dkt. 20 at 4-7, he has failed to do so. Thus, 8 the 4AC will be DISMISSSED for failure to state a cognizable claim for relief. See Dkt. 21. 9 First, prisoners enjoy a First Amendment right to send and receive mail. See Witherow v. 10 Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). 11 The deliberate delay of legal mail which adversely affects legal proceedings presents a cognizable 12 claim for denial of access to the courts. See Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir. 13 1986). However, isolated incidents of mail interference without any evidence of improper motive 14 or resulting interference with the right to counsel or access to the courts do not give rise to a 15 constitutional violation. See Smith, 899 F.2d at 944; Bach v. Illinois, 504 F.2d 1100, 1102 (7th 16 Cir.) (isolated incident of mail mishandling insufficient to state a claim under section 1983), cert. 17 denied, 418 U.S. 910 (1974). 18 In his 4AC, plaintiff raises only Claim 1 and alleges that he was denied access to the 19 courts. Dkt. 21 at 4-6. He appears to contend that defendant Adame’s “unlawful” nineteen-day 20 delay in mailing his federal habeas petition led to his “50 day delay in filing Federal Writ No. 21 cv501AGRAO . . . .” Id. at 6. Plaintiff does not give any more details about “Federal Writ No. 22 cv501AGRAO.” See id. For example, he fails to state in which district it was filed or whether the 23 case is still pending or closed, etc. See id. 24 A search of plaintiff’s filings in this district using the Court’s Electronic Case Filing 25 (“ECF”)2 reveals that the only prior habeas action plaintiff filed is Case No. 17-04829-LHK (PR), 26

27 2 ECF is the Court’s filing system that allows parties to file and serve documents 1 as mentioned in the Court’s previous order. See Dkt. 20 at 7 at fn. 3. Again, as explained in the 2 Court’s July 7, 2022 Order, that action was dismissed based on in forma pauperis deficiency on 3 October 12, 2017—four months before the alleged nineteen-day mail delay by defendant Adame 4 in February 2018. See Dkt. 20 at 7 fn. 3 (citing Dkt. 10 in Case No. 17-04829-LHK (PR)). 5 A search of the Court’s Public Access to Court Electronic Records (“PACER”)3 system 6 indicates that on March 13, 2018, plaintiff filed a federal habeas petition in Case No. 18-cv-00501- 7 AG-RAO in the Eastern Division of the United States District Court for the Central District of 8 California. It seems that Case No. 18-cv-00501-AG-RAO is the same as “Federal Writ No. 9 cv501AGRAO,” which plaintiff refers to in his 4AC. See Dkt. 21 at 6. The docket indicates that 10 the federal habeas petition in Case No. 18-cv-00501-AG-RAO was dismissed on November 30, 11 2018 on untimeliness grounds because the District Judge from the Central District accepted the 12 Report and Recommendation (“Report”) issued on September 18, 2018 by the Magistrate Judge 13 from the Central District.4 See Dkts. 17 & 19 in Case No. 18-cv-00501-AG-RAO. However, the 14 record shows that the reasons why plaintiff’s federal habeas was dismissed do not match up with 15 his allegations. For example, plaintiff seems to contend that the nineteen-day delay was 16 instrumental in his federal habeas petition’s untimeliness, but the September 18, 2018 Report 17 indicates that the Magistrate Judge from the Central District would have still found his petition to 18 be untimely had it overlooked the nineteen-day delay by deeming the petition filed nineteen days 19 earlier, i.e., on February 15, 2018, stating as follows:

20 Petitioner’s conviction thus became final on February 8, 2016, 90 days after the California Supreme Court denied his petition for review 21

22 3 PACER is the system used to view case dockets and documents that have been electronically filed in all district courts across the country. 23

4 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which became 24 law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging noncapital state 25 convictions or sentences must be filed within one year of the latest of the date on which: (A) the judgment became final after the conclusion of direct review or the time passed for seeking direct 26 review; (B) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (C) the constitutional right asserted was 27 recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and on November 10, 2015. (Lodg. 8); see also Bowen v. Roe, 188 F.3d 1 1157, 1158-59 (9th Cir. 1999) (the period of direct review for purposes of AEDPA’s limitations period “includes the period within 2 which a petitioner can file a petition for writ of certiorari from the United States Supreme Court”); Sup. Ct. R. 13 (allowing a petition 3 for writ of certiorari seeking review of a judgment of a state court of last resort to be filed within 90 days of the entry of judgment). The 4 limitations period thus began to run on February 9, 2016, and expired one year later, on February 8, 2017. See Patterson v. Stewart, 251 5 F.3d 1243, 1246 (9th Cir. 2001) (holding the one-year limitations period begins running the day after expiration of the 90-day time 6 within which to seek review by the United States Supreme Court). As a result, Petitioner had until February 8, 2017, in which to file a 7 timely federal habeas petition, absent statutory or equitable tolling. He did not file his federal habeas petition until March 6, 2018.[FN 4] 8 As discussed below, while Petitioner is entitled to some statutory tolling, it is not enough to make the Petition timely. 9 [FN4:] Petitioner argues that he filed his federal habeas petition on 10 February 15, 2018, when he “mailed [it] out.” (Opp. at 5, Exh. 4 at 3.) Even if the Court were to assume this were true, the Petition would 11 be untimely. 12 Dkt. 17 at 5 & fn. 4. Furthermore, the District Judge from the Central District noted in the 13 November 30, 2018 Order accepting the Report that plaintiff had “made new factual 14 assertions . . . in support of his argument that the Petition [was] timely because it was filed on 15 February 15, 2018.” Dkt. 19 at 1 in Case No. 18-cv-00501-AG-RAO (citing Dkt. No. 18). 16 However, the District Judge “decline[d] to consider the new assertions and evidence offered in 17 Plaintiff’s Objections.” Id. He relied on the Magistrate Judge’s findings in the Report, stating as 18 follows: “In any event, the Court notes that the Report found that the Petition is untimely even if 19 the Court were to assume a filing date of February 15, 2018, which is the gravamen of Petitioner’s 20 contention.” Id. at 2. Thus, it is clear from the record that the alleged nineteen-day delay was not 21 the reason why plaintiff’s federal petition was dismissed as untimely. 22 Plaintiff also appears to contend that his federal habeas petition was hampered by SVSP 23 officials limiting his access to the law library, but the Magistrate Judge from the Central District 24 rejected such an argument and found that plaintiff

25 failed to explain how any restrictions on his law library access made it impossible for him to seek federal habeas relieve on a timely basis. 26 Further, given that [plaintiff’s] state habeas petitions and his federal Petition raise the same claims, the Court is at a loss to see how any 27 extraordinary circumstances made it impossible for him to timely file 1 Id. at 9. 2 As such, Claim 1 must be dismissed because plaintiff suffered no actual injury as a result 3 of defendant Adame’s alleged nineteen-day interference with plaintiff’s right of access to the 4 courts. A constitutional right of access to the courts does exist, but to establish a claim for any 5 violation of the right of access to the courts, the prisoner must show that there was an inadequacy 6 in the prison’s legal access program that caused him an actual injury. See Lewis v. Casey, 518 7 U.S. 343, 350-51 (1996). To prove an actual injury, the prisoner must show that the inadequacy 8 hindered him in presenting a non-frivolous claim concerning his conviction or conditions of 9 confinement. See id. at 355. Examples of impermissible hindrances include: a prisoner whose 10 complaint was dismissed for failure to satisfy some technical requirement which, because of 11 deficiencies in the prison’s legal assistance facilities, he could not have known; and a prisoner who 12 had “suffered arguably actionable harm” that he wished to bring to the attention of the court, but 13 was so stymied by the inadequacies of the prison’s services that he was unable even to file a 14 complaint. See id. at 351. 15 Here, no actual injury has occurred based on the alleged actions of defendant Adame as the 16 record shows that plaintiff’s federal habeas petition was not dismissed as a result of the nineteen- 17 day delay in the mail at SVSP. Indeed, the Magistrate Judge from the Central District even 18 stressed that statutory tolling5 still did not save the petition from being untimely, noting that 19 plaintiff waited to begin collateral review6 by filing his state habeas petition in the state superior 20 court on January 13, 2017, which was “eight days before the expiration of the AEDPA limitations 21 period.” See Dkt. 17 at 6 in Case No. 18-cv-00501-AG-RAO; see also 28 U.S.C. § 2244(d)(2) 22 (Time during which a properly filed application for state post-conviction or other collateral review 23 is pending is excluded from the one-year time limit.) Thus, it was plaintiff who was responsible 24 5 The one-year statute of limitations is statutorily tolled under § 2244(d)(2) for the “time 25 during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). 26

6 The phrase “collateral review” in section 2244(d)(2) means judicial review of a judgment 27 in a proceeding that is not part of direct review. Wall v. Kholi, 562 U.S. 545, 556 (2011) (holding 1 for delaying the commencement of filing any application for collateral review for almost a full 2 || year (eight days short of a year to be exact). See Dkt. 17 at 6 in Case No. 18-cv-00501-AG-RAO. 3 Thus, the record shows he only had eight days left of the limitations period when the state superior 4 || court issued its denial on April 6, 2017. See id. The Magistrate Judge from the Central District 5 determined that “[o]n April 7, 2017, the limitations clock began to run again, and expired eight 6 || days later, on April 14, 2017.” Id. (footnote omitted). Said differently, it matters not that 7 || plaintiff's mail was delayed by defendant Adame for nineteen days from February 15, 2018 to 8 || March 6, 2018 because the time to file his federal petition had already expired on April 14, 2017. 9 || Id. 10 Additionally, the Magistrate Judge from the Central District found that plaintiff was not 11 entitled to equitable tolling because not only were plaintiff claims of lack of law library access 12 || found to be unavailing (as mentioned earlier), he also “failed to show that he diligently pursued 5 13 || his rights.” 7d. at 10. 14 Because no actual injury resulted from the alleged nineteen-day delay caused by defendant 3 15 Adame, plaintiffs claim for denial of access to the courts (Claim 1, the only remaining claim in a 16 || this action) is DISMISSED without any further leave to amend, especially in light of the several 3 17 chances plaintiff has been granted to amend his claims. S 18 Accordingly, the 4AC is DISMISSED for failure to state a cognizable claim for relief. 19 || IV. CONCLUSION 20 For the foregoing reasons, the Court DISMISSES the 4AC for failure to state a cognizable 21 claim for relief and without any further leave to amend. 22 The Clerk of the Court shall terminate all pending motions as moot and close the file. 23 IT IS SO ORDERED. 24 Dated: October 12, 2022 25 bo pill Lf tps fe. — ae tes Z ROGERS nitéd States District Judge 27 28