United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MICHAEL J. HICKS,

Plaintiff,

v.

M. S. EVANS, warden,

Defendant. /

No. C 08-1146 SI (pr)

ORDER OF DISMISSAL WITH

LEAVE TO AMEND

INTRODUCTION

Michael J. Hicks, an inmate formerly at Salinas Valley State Prison and now at the

California State Prison - Solano, filed a pro se civil rights action under 42 U.S.C. § 1983. The

court dismissed the action because Hicks failed to exhaust administrative remedies before filing

it. Hicks appealed, and the Ninth Circuit reversed and remanded the case. The complaint

therefore once again is before the court for initial review under 28 U.S.C. § 1915A. 

BACKGROUND

Hicks alleged the following in his complaint:

On May 23, 2007, Hicks was transferred into psychiatric housing at Salinas Valley State

Prison. He informed the housing unit senior MTAs that he had a court hearing set for June 22,

26 and 28, 2007, and requested his legal property and access to the law library as a preferred

legal user. His request was denied. He filed an inmate appeal and wrote a letter to defendant

M.S. Evans on June 11, 2007, in which he complained about his problem. 

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Warden Evans forwarded Hicks' letter to associate warden Trexler. On June 21, 2007,

associate warden Trexler responded to Hicks’ letter to the warden. Trexler noted that Hicks was

in the psychiatric program but also was serving disciplinary SHU terms. With regard to access

to legal materials, Trexler wrote: “You have been utilizing the paging system for Law Library

and will continue to be allowed to utilize this system to meet your legal needs. Your use of the

law library system has no bearing on your ability to program in DMH. You will not be excluded

from Mental Health Treatment for exercising your right to the law library.” Complaint, Exh. B.

On June 18, 2007, Hicks was interviewed by the “education principal,” T. Melvin, who

agreed that a law library computer would be provided by the next day. Complaint (Docket # 1),

p. 6. Hicks withdrew his inmate appeal. “The agreement was violated with one excuse of delay

after another and with no ability to meaningful research plaintiff had three cases in a row

dismissed and lost.” Id. Hicks reinstated his inmate appeal on July 4, 2007.

Hicks also filed a motion in his pending state court case for physical access to the library.

The San Francisco County Superior Court issued an order on July 26, 2007 to warden Evans to

give Hicks “reasonable access to legal materials including access to a law library computer.”

Id. at 7. (The order is not as far-reaching as Hicks contends, and instead orders the warden to

grant Hicks “reasonable access, consistent with the Prison’s security needs, to legal materials

to respond to the motion to be heard on September 12, 2007 to declare Mr. Hicks a vexatious

litigant.” Complaint, Exh. D at 2.) The lone named defendant is warden Evans. 

DISCUSSION

A federal court must engage in a preliminary screening of any case in which a prisoner

seeks redress from a governmental entity or officer or employee of a governmental entity. See

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. See id. at

1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police

Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

a right secured by the Constitution or laws of the United States was violated and (2) that the

violation was committed by a person acting under the color of state law. See West v. Atkins,

487 U.S. 42, 48 (1988).

A constitutional right of access to the courts exists, but to establish a claim for any

violation of the right of access to the courts, the prisoner must show that there was an inadequacy

in the prison's legal access program that caused him an actual injury. See Lewis v. Casey, 518

U.S. 343, 350-51 (1996). To prove an actual injury, the prisoner must show that the inadequacy

hindered him in presenting a non-frivolous claim concerning his conviction or conditions of

confinement. See id. at 355. Examples of impermissible hindrances include: a prisoner whose

complaint was dismissed for failure to satisfy some technical requirement which, because of

deficiencies in the prison's legal assistance facilities, he could not have known; and a prisoner

who had "suffered arguably actionable harm" that he wished to bring to the attention of the

court, but was so stymied by the inadequacies of the prison's services that he was unable even

to file a complaint. See id. at 351. 

The complaint does not state a claim for relief against any defendant for denial of access

to the courts because the complaint does not allege an actual injury caused by anything the lone

defendant did. In his amended complaint, Hicks may attempt to plead a denial of access to the

courts claim, but is cautioned that he must identify the deficiency in the legal program and allege

an actual injury to state a claim for relief. His amended complaint should answer these

questions: What access to legal materials did prison officials give you and what access did they

deny? Why was what the prison officials gave you not sufficient for your legal needs? 

In his amended complaint, Hicks must allege what warden Evans did or failed to do that

caused a violation of his right of access to the courts. It is unclear from the complaint what

warden Evans did that caused Hicks’ problem. If Hicks wants to add other defendants, he may

do so but must clearly list them in the caption of his amended complaint. He also must link each

such defendant to his claim by alleging what that person did or failed to do that caused a denial

of his right of access to the courts. 

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The court notes that Hicks appears to be laboring under a misunderstanding of the law.

Hicks took the position in his inmate appeal that “physical access to the law library is

MANDATORY.” Complaint, Exh. A at § D (capitalization in original). That may have been

his demand, but it is not an accurate statement of federal law. Lewis does not command physical

access to a prison law library. Although prison officials must ensure that prisoners "have a

reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions

or conditions of confinement," the officials are free to devise their own methods to reach that

result. See Lewis, 518 U.S. at 356. Bounds "guarantees no particular methodology but rather

the conferral of a capability--the capability of bringing contemplated challenges to sentences or

conditions of confinement before the courts." Id. Thus, although prison law libraries or legal

assistants are the typical programs, local experimentation in various methods of assuring access

to the courts is encouraged. See id. at 352. In some instances, a law library or other program

may not be sufficient for some of the prisoners because of their special situations (e.g., illiteracy

or inability to communicate in English). See id. at 356. In his amended complaint, Hicks should

explain why the system that the warden’s representative identified (i.e., the legal paging system)

was inadequate for his needs.

Finally, the court notes that the San Francisco Superior Court’s order does not establish

what prison officials were required to do in order to comply with the federal constitution. A

state court order does not provide a right secured by the Constitution or laws or treaties of the

United States, the violation of which is a necessary element of a § 1983 claim. If Hicks wanted

to pursue a claim for violation of that order, his recourse for a violation of that order would be

by filing a motion in the superior court case or an appeal in state court. 

CONCLUSION

For the foregoing reasons, the complaint is dismissed with leave to amend. The amended

complaint must be filed no later than May 7, 2010, and must include the caption and civil case

number used in this order and the words AMENDED COMPLAINT on the first page. Plaintiff

is cautioned that his amended complaint must be a complete statement of his claims and will

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supersede existing pleadings. See London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

1981) ("a plaintiff waives all causes of action alleged in the original complaint which are not

alleged in the amended complaint.") Failure to file the amended complaint by the deadline will

result in the dismissal of the action.

IT IS SO ORDERED.

Dated: April 2, 2010 _______________________

 SUSAN ILLSTON

United States District Judge

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