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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

HARRY J. WILLIBY,

Plaintiff, No. CIV S-04-2560 DFL JFM P

vs.

JEANNE S. WOODFORD, 

et al.,

Defendants. ORDER

 /

Plaintiff is a former state prisoner on parole proceeding pro se and in forma

pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed August 26, 2005,

plaintiff's complaint was dismissed with leave to file an amended complaint. After receiving two

extensions of time, plaintiff has now filed an amended complaint.

The court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

granted, or that seek monetary relief from a defendant who is immune from such relief. 28

U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

Cir. 1989); Franklin, 745 F.2d at 1227.

A complaint, or portion thereof, should only be dismissed for failure to state a

claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set

of facts in support of the claim or claims that would entitle him to relief. Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer

v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a

complaint under this standard, the court must accept as true the allegations of the complaint in

question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor,

Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 

Plaintiff names thirty-three defendants in his amended complaint. Allegations

against defendants are grouped into paragraphs in section IV(10) of the amended complaint. In ¶

A of that section, plaintiff alleges that defendants Woodford, Kanan, Carey, Traquina, McIntyre,

Kurk, Cheung, and Sheehan failed to provide or authorize required dental work. Based on these

allegations, plaintiff raises claims of a violation of his Eighth Amendment rights and a pendent

state law negligence claim. The allegations of this paragraph are sufficient to state cognizable

claims for relief and the court will order service on said defendants.

In ¶ B of that section, plaintiff alleges that defendants Carey, Brumfield, Johns,

Moser, Robinson, Knudsen, Chirilla, Whitson, Ferguson, Whitfield, Soliz, Coyle, Holyfield,

Fabela, Howard, Sheppared, Boyd, failed to protect plaintiff from excessive force allegedly

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inflicted by defendant Whitfield in November 2002, that he was “subjected to threats” by

defendants Whitfield, Soliz, Knudsen, Chirilla, Whitson, Ferguson, Coyle, Holyfield, Fabela,

Howard, Sheppard, and Boyd, and harassment by defendants Whitfield, Soliz, Knudsen, Chirilla,

Coyle, Holyfield, Fabela, Howard, Sheppard, Murray, and Groeneweg, Boyd, Whitson, Fabela,

and Moore. Pliantiff also alleges that defendants Thompson, Guzman, Brennegan, Whitson, and

Fabela interefered with his constitutional right to access the courts, thereby preventing plaintiff

from prosecuting his criminal appeal, habeas corpus action, this action, and a civil rights action

filed in the United States District Court for the Northern District of California.

None of the foregoing allegations state a cognizable claim for relief. In a

subsequent section of the complaint, plaintiff sets forth a specific claim of excessive force and/or

failure to protect from that use of force against defendants Whitfield, Knudsen, Chirilla, and

Soliz. (Amended Complaint, filed December 20, 2005, at ¶ IV(10)(G).) The vague and

conclusory reference to this alleged incident and involvement of thirteen other defendants is

insufficient to state a cognizable claim for relief against those thirteen individuals. The court will

not, therefore, order service of process on said individuals. Similarly, the allegations of threat

and harassment are too vague and conclusory to state a cognizable claim for relief and the court

will not order service of process on any defendant based on the allegations raised in ¶ IV(10)(B).

The final set of allegations in this paragraph are that several defendants interfered

with plaintiff’s constitutional right of access to the courts by consficating his legal property,

thereby interfering with his ability to prosecute his criminal appeal, habeas corpus action, this

action, and another civil rights action filed in the United States District Court for the Northern

District of California. Similar allegations are raised in ¶ VI(10)(F), wherein plaintiff alleges that

the legal material was confiscated in retaliation for plaintiff’s exercising his right to access the

courts and the inmate grievance procedure. The allegations of retaliation are too vague and

conclusory to state a cognizable retaliation claim in this § 1983 action. 

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 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 1

803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).

4

In Lewis v. Casey, 518 U.S. 343 (1996), the United States Supreme Court held

that prison inmates have a constitutionally protected right to access the courts to bring civil rights

actions to challenge their conditions of confinement and to bring challenges to their criminal

convictions. Lewis v. Casey, 518 U.S. at 351. In order to state a cognizable claim for violation

of this right, plaintiff must allege facts which support a finding that defendants by their acts

prevented him from bringing, or caused him to lose, an actionable claim of this type. Id. at 356. 

Plaintiff has not been prevented from litigating this action by any acts or

omissions of state correctional officials. Moreover, review of court records in the United States

District Court for the Northern District of California shows that plaintiff’s federal habeas corpus 1

action was denied on the merits on September 20, 2005. (Order filed September 20, 2005 in

Williby v. Carey, No. C 02-3628 JSW (PR).) That order also demonstrates that plaintiff pursued

a direct appeal from his criminal conviction at both levels of appellate review in the state court

system. (Id., passim.) In addition, court records from the United States District Court for the

Northern District of California also show that the civil rights action to which plaintiff refers was

also resolved on the merits on motions to dismiss and for summary judgment. (Order filed

January 13, 2006 in No. C 02-0107 JSW (PR).) 

For the foregoing reasons, plaintiff cannot show that the alleged confiscation of

legal material caused actual injury to his right to access the courts and the court will not order

service of process on any defendant named in connection therewith. Moreover, plaintiff is

cautioned that his allegations to the contrary might constitute a violation of Rule 11 of the

Federal Rules of Civil Procedure and that mispresentations of facts material to claims raised in

this action will not be tolerated. The court will not order service of process on the defendants

identified in paragraphs IV(10)(B) involved with alleged confiscation of plaintiff’s legal

material, or on any named defendant on the basis of allegations contained in paragraph IV(10)(F).

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Paragraphs IV(10)(C) and (IV)(10)(D) contain a laundry list of alleged

improprieties by defendants named therein, including improper issuance of rules violation

reports, classification decisions, placement in administrative segregation, transfers, and

subjecting plaintiff to numerous unconstitutional conditions of confinement. There are no

allegations of specific acts or omissions by any named defendant. Plaintiff has previously been

advised that vague and conclusory allegations against individual defendants are insufficient to

state cognizable claims for relief in this § 1983 action. The court will not order service of

process on any defendant on the basis of allegations in either of these paragraphs.

The court will order service of process on defendants Knudsen, Whitfield,

Chirilla, and Soliz on the basis of the allegations contained in paragraph IV(10)(E) and (G) of the

amended complaint. These allegations, if proved, may entitled plaintiff to relief in this § 1983

action.

Finally, in paragraph IV(10)(H) plaintiff claims that defendant Woodford violated

plaintiff’s Eighth Amendment rights by failing to provide plaintiff with post-parole services,

including medical, dental, housing, or employment services. The Eighth Amendment does not

give rise to such a duty in state corrections officials. These allegations do not state a cognizable

claim for relief and defendant Woodford will not be required to respond to the claim arising from

those allegations. 

In accordance with the above, IT IS HEREBY ORDERED that:

1. Service is appropriate for the following defendants: Woodford, Kanan, Carey,

Traquina, McIntyre, Kurk, Cheung, Sheehan, Knudsen, Whitfield, Chirilla, and Soliz.

2. The Clerk of the Court shall send plaintiff twelve USM-285 forms, one

summons, an instruction sheet and a copy of the amended complaint filed December 20, 2005.

3. Within thirty days from the date of this order, plaintiff shall complete the

attached Notice of Submission of Documents and submit the following documents to the court:

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a. The completed Notice of Submission of Documents;

b. One completed summons;

c. One completed USM-285 form for each defendant listed in number 1

above; and 

d. Thirteen copies of the endorsed amended complaint filed December 20,

2005.

4. Plaintiff need not attempt service on defendants and need not request waiver of

service. Upon receipt of the above-described documents, the court will direct the United States

Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4

without payment of costs. 

DATED: March 9, 2006. 

12

will2560.1am

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

HARRY J. WILLIBY,

Plaintiff, No. CIV S-04-2560 DFL JFM P

vs.

JEANNE S. WOODFORD, et al., NOTICE OF SUBMISSION

Defendants. OF DOCUMENTS

 /

Plaintiff hereby submits the following documents in compliance with the court's

order filed :

 completed summons form

 completed USM-285 forms

 copies of the 

 Amended Complaint

DATED: 

 

Plaintiff

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