Free Order on Motion to Amend/Correct - District Court of Arizona - Arizona

1 Br.
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6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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9 Alphonso R. Martinez, ) No. CV 04-00021-ROS (MEA)
10 Plaintiff, ORDER
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Betty Uliberry, et al.,
I 3 Defendants.
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16 Plaintiff Alphonse R. Martinez, currently confined in the Eyman-Meadows Unit of
17 the Arizona State Prison Complex in Florence, Arizona, has filed a pro se Amended
18 Complaint (Doc. #12) pursuant to 42 U.S.C. § 1983. Plaintiff also seeks leave to tile a
19 Second Amended Complaint (Doc. # 13). The Court will deny Plaintiff leave to amend and
20 dismiss the action.
21 A. Statutory Screening of Prisoner Complaints.
22 The Court is required to screen complaints brought by prisoners seeking relief against
23 a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
24 § l9l5A(a). The Court must dismiss a complaint or portion thereof if Plaintiff has raised
25 claims that are legally "frivolous or malicious," that fail to state a claim upon which relief
26 may be granted, or that seek monetary relief from a defendant who is immune from such
27 relief. 28 U.S.C. § l9l5A(b)(l),(2). If the Court determines that a pleading could be cured
28 by the allegation of other facts, a pm se litigant is entitled to an opportunity to amend the
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1 complaint before dismissal of the action. gz; Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th
2 Cir. 2000) (en banc). The Court is required to grant leave to amend "if a complaint can
3 possibly be saved," but not if the Complaint "lacl 4 therefore should grant leave to amend if the pleading could be cured by the allegation of
5 other facts, or if it appears at all possible that the defect can be corrected. ld; at 1130.
6 Plaintiff’ s Amended Complaint will be dismissed without leave to amend because the defects
7 cannot be corrected.
8 B. Complaint.
9 Plaintiff names as Defendants (1) Betty Uliberry, Contract Paralegal, and (2) Terry
10 Stewart, Ex-Director of the Arizona Department of Corrections ("ADOC"). Plaintiff sets
11 forth the following causes of action.
12 Count I
13 Plaintiff alleges that his First and Fourteenth Amendment right to access the courts
14 was denied because Defendant Uliberry incorrectly informed him that he should leave the
15 fact section of his Az.R.Crim.P. 32 fonn blank. As a result, his 2001 Rule 32 motion was
16 dismissed and he "has forever lost his right to post-conviction relief."
17 Count II
18 Plaintiff alleges that his First and Fourteenth Amendment right to access the courts
19 was violated by Defendant Stewart because Defendant Stewart eliminated all prison law
20 libraries in August 1997, and only provides inmates the services of a paralegal. Plaintiff
21 alleges that, as a result of Defendant Stewart’s actions, there is no measure in place to
22 accommodate an illiterate prisoner. Plaintiff argues that Defendant Stewart, “[b]y
23 eliminating all law books and eliminating jail house lawyers from helping other inmates and
24 not compensating for illiterates," deprived him of meaningful access to the courts.
25 Plaintiff seeks monetary and other relief.
26 C. Failure to State a Claim.
27 The right of meaningful access to the courts prohibits state officials from actively
28 interfering with imnates’ attempts to prepare or file legal documents. Lewis v. Casey, 518
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1 U.S. 343, 350 (1996). "[T]he fundamental access to the courts requires prison authorities to
2 assist inmates in the preparation and tiling of meaningful legal papers by providing prisoners
3 with adequate law libraries or adequate assistance from persons trained in the 1aw." _ds
4 L , 430 U.S. 817, 828 (1977) (emphasis added). Further, a plaintiff must show that he
5 suffered an "actual injury" with respect to contemplated litigation; the plaintiff must
6 demonstrate that the conduct of the defendants prevented him from bringing to court a
7 nonfrivolous claim that he wished to present. Lg; at 351-53.
8 The Court finds it necessary to take judicial notice ofthe records on file in Plaintiff s
9 state court criminal action, State v. Martinez, CR 1996-013319 (Maricopa County Superior
10 Court). Judicial notice of public records is appropriate under these circumstances. E ky
11 gig, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995); Mir v. Little Co. ofMary Hosp., 844 F.2d
12 646, 649 (9th Cir. 1988). A review of Plaintiffs state court records demonstrates that his
13 2001 Rule 32 motion was dismissed as untimely. Therefore, the fact that the paralegal
14 allegedly advised him to leave the fact section blank and that there was no prison library did
15 not result in his Rule 32 motion being dismissed. Moreover, prison authorities are required
16 to provide an adequate law library or adequate assistance from persons trained in the law.
17 The prison is not required to provide both. Thus, Plaintiff carmot demonstrate that his
18 constitutional right to access the courts was denied. Moreover, based on the facts of the case,
19 any attempt to file a Second Amended Complaint would be futile. Accordingly, Plaintiff s
20 request to amend his § 1983 Complaint will be denied and the First Amended Complaint will
21 be dismissed with prejudice.
22 IT IS THEREFORE ORDERED that:
23 (1) That Plaintiffs motion to Amend his Amended Complaint (Doc. # 13) is denied.
24 (2) The Complaint (Doc. #12) and this action are dismissed for failure to state a
25 claim pursuant to 28 U.S.C. §l915(e)(2)(B)(ii), and the Clerk of Court shall enter judgment
26 accordingly.
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1 (3) The Clerk of Court shall make an entry on the docket in this matter indicating that
2 the dismissal for failure to state a claim falls within the purview of 28 U.S.C. § 191 5(g).
3 DATED this l1“‘ day of October, 2005.
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; Unitedh(§;tates Judge
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