United States District Court, D. Oregon
AIKEN, UNITED STATES DISTRICT JUDGE.
currently an inmate at a Florida correctional institution,
filed this action pursuant to 42 U, SC § 1983 and paid
the filing fee. In light of his incarcerated status, the
court issued Waiver of Service forms to defendants. Defendant
C. Peters returned an executed waiver form. Defendants Foley
and Glenn, both correctional officials in Texas, have not
returned an executed waiver of service, Defendant Peters now
moves for dismissal of this action on grounds that plaintiffs
claims against her are barred by the statute of limitations
and she was not personally involved in the alleged conduct
taken against plaintiff. The motion is granted.
of a pro se complaint for failure to state a claim "is
proper only if it is clear that the plaintiff cannot prove
any set of facts in support of the claim that would entitle
him to relief." Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012). The court must construe pro se
pleadings liberally and afford the plaintiff "the
benefit of any doubt." Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citation omitted).
"Unless it is absolutely clear that no amendment can
cure" defects in the complaint, "a pro se litigant
Is entitled to notice of the complaint's deficiencies and
an opportunity to amend prior to dismissal of the
action." Lucas v. Dep'l of Corr., 66 F.3d
245, 248 (9th Cir. 1995) (per curiam).
alleges that in June 2013, defendant Peters and other unnamed
Oregon correctional officials conspired to transfer him to a
Texas correctional facility in retaliation for filing
grievances and publishing numerous articles critical of the
Oregon Department of Corrections (ODOC). Plaintiff further
alleges that he wrote to Peters and "her
colleagues" and requested "access to various court
rules, rulings and other laws governing civil proceedings in
Oregon's state and federal courts" in order to file
a claim alleging retaliatory transfer and other unidentified
claims. Compl. at 2 (ECF No. 2). Peters did not respond, and
plaintiff alleges that her failure to provide legal resources
denied him access to the courts.
that plaintiffs claims against Peters are barred by the
applicable two-year statute of limitations, because any
conduct giving rise to liability occurred more than two years
before plaintiff filed suit. Sain v. City of Bend,
309 F.3d 1! 34, 1139 (9th Cir. 2002) (Oregon's two-year
statute of limitations for personal injury actions applies to
§ 1983 actions). Plaintiff concedes that he was
transferred from ODOC custody in June 2013, more than two
years before he filed suit in March 2017. To the extent he
claims that Peters failed to respond to his requests for
legal resources after his transfer to Texas, plaintiff does
not explain why he did not seek legal materials from the
Texas institution where he was housed. Regardless, the
limitations period for plaintiffs claims against Peters began
to run in June 2013, when plaintiff was transferred from ODOC
custody, and expired two years later in June 2015.
Accordingly, plaintiffs claims against Peters are untimely.
result, plaintiffs remaining claim against Texas correctional
officials lacks merit and must be dismissed for failure to
state a claim. Plaintiff alleges that in November 2016, he
filed suit in this Court alleging the same claims as he
alleges in this action: that Peters denied him access to the
courts by failing to respond to his requests for legal
materials. Compl. at 2-3; see also Johnson v.
Peters, Civ, No. 3:i6-cv-02198-TC (Nov, 21, 2016). When
plaintiff filed suit in November 2016, he did not pay the
fling fee and instead sought to proceed in forma pauperis.
However, plaintiff did not provide a certification of his
inmate trust account, and he was ordered to do so.
See 28 U.S, C. § 1915(a)(2). Plaintiff contends
that shortly afterward, the Texas defendants confiscated his
personal property, including the order directing plaintiff
v/here to send the certification. Plaintiff alleges that he
was unable to send the certification by the ordered deadline,
and his November 2016 action was dismissed as a result.
Accordingly, plaintiff asserts that the Texas officials
denied him access to the courts by hindering his November
2016 action, A claim alleging the denial of access to the
courts must allege an actual injury by showing that the
defendants' actions frustrated or impeded a
"nonfrivolous legal claim." Lewis v.
Casey, 518 U.S. 343, 353 (1996). Here, plaintiffs
alleged injury is the dismissal of his November 2016 case
alleging the same claims against Peters that he alleges in
this case. As explained above, the limitations period for
plaintiffs claims against Peters expired in June 2015, two
years after his transfer from ODOC custody. Accordingly,
plaintiffs November 2016 suit was likewise untimely, and
plaintiff cannot show an actual injury arising from the Texas
defendants' confiscation of his personal property.
plaintiff alleges in a "motion for Contempt" that
the named Texas officials and non-party Florida correctional
officials interfered with his ability to pursue this case by
confiscating his property and transferring him to Florida.
(ECF No. 14) However, the Florida officials are not named as
defendants in this action, venue is not appropriate in this
District, and plaintiff cannot sustain a claim against them
or the Texas officials in any event. As explained above,
plaintiffs claim against Peters is untimely and he cannot
establish an actual injury based related to this litigation.
extent plaintiff contends that the conduct of Texas and
Florida correctional officials hindered plaintiffs access to
the courts with respect to other litigation, plaintiff should
file a separate suit in the district(s) where the alleged
actions occurred. 28 U.S.C. § 1391 (b)(2) (providing
that a civil action may be brought in the judicial district
"in which a substantial part of the events or omissions
giving to the claim occurred").
Peters's Motion to Dismiss (ECF No, 18) is GRANTED, ...