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Prisoner Stated Civil Rights Claim but not RICO Claim
The U.S. Ninth Circuit Court of Appeals vacated part of a California
federal district court's dismissal of a prisoner's civil right action,
holding that the prisoner failed to state a claim under the Racketeer
Influenced and Corrupt Organization (RICO) Act, but did state a civil
rights claim under 42 U.S.C. §1983.
G. Daniel Walker is a California state prisoner transferred from Illinois.
Walker sued Illinois' and California's Departments of Corrections, a
California prison, a court, and several prison officials in their
individual capacities under RICO, 18 U.S.C. §§1961-1968, and under 42
U.S.C. §§1983 and 1985.
Walker alleged in his second amended complaint that when he was
transferred from Illinois to California, prison officials confiscated and
failed to ship his legal materials, thus causing him to default in several
cases; intercepted his outgoing mail and prevented documents from being
filed in court; and seized his computer equipment and several typewriters,
preventing him from submitting pleadings because they were not typewritten.
The district court dismissed the corrections departments, the prison and
the court under the Eleventh Amendment; dismissed the RICO claims because
states cannot be liable under RICO; and dismissed the §1983 and §1985
claims for failure to state a claim and for failure to exhaust
administrative remedies prior to filing suit. Walker appealed.
The appeals court affirmed dismissal of the corrections departments,
prison and court on sovereign immunity grounds. The appeals court held
that non-exhaustion of administrative remedies is an affirmative defense,
which Walker should have been allowed to raise. The court further held
that Walker clearly alleged "sufficient facts to state a claim under
section 1983." The RICO claims and the §1985 claims were properly
dismissed, the court held.
The district court's dismissal was affirmed in part, vacated in part and
remanded for service of process and further proceedings. This is not a
ruling on the merits of Walker's claims. This case is published in the
Federal Appendix and is subject to rules governing unpublished cases. See:
Walker v. Clark, 53 Fed.Appx. 804 (9th Cir. 2002).
federal district court's dismissal of a prisoner's civil right action,
holding that the prisoner failed to state a claim under the Racketeer
Influenced and Corrupt Organization (RICO) Act, but did state a civil
rights claim under 42 U.S.C. §1983.
G. Daniel Walker is a California state prisoner transferred from Illinois.
Walker sued Illinois' and California's Departments of Corrections, a
California prison, a court, and several prison officials in their
individual capacities under RICO, 18 U.S.C. §§1961-1968, and under 42
U.S.C. §§1983 and 1985.
Walker alleged in his second amended complaint that when he was
transferred from Illinois to California, prison officials confiscated and
failed to ship his legal materials, thus causing him to default in several
cases; intercepted his outgoing mail and prevented documents from being
filed in court; and seized his computer equipment and several typewriters,
preventing him from submitting pleadings because they were not typewritten.
The district court dismissed the corrections departments, the prison and
the court under the Eleventh Amendment; dismissed the RICO claims because
states cannot be liable under RICO; and dismissed the §1983 and §1985
claims for failure to state a claim and for failure to exhaust
administrative remedies prior to filing suit. Walker appealed.
The appeals court affirmed dismissal of the corrections departments,
prison and court on sovereign immunity grounds. The appeals court held
that non-exhaustion of administrative remedies is an affirmative defense,
which Walker should have been allowed to raise. The court further held
that Walker clearly alleged "sufficient facts to state a claim under
section 1983." The RICO claims and the §1985 claims were properly
dismissed, the court held.
The district court's dismissal was affirmed in part, vacated in part and
remanded for service of process and further proceedings. This is not a
ruling on the merits of Walker's claims. This case is published in the
Federal Appendix and is subject to rules governing unpublished cases. See:
Walker v. Clark, 53 Fed.Appx. 804 (9th Cir. 2002).
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Related legal case
Walker v. Clark
| Year | 2002 |
|---|---|
| Cite | 53 Fed.Appx. 804 (9th Cir. 2002) |
| Level | Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
G. DANIEL WALKER, Plaintiff-Appellant, v. BRUCE A. CLARK; et al., Defendants-Appellees.
No. 01-57112
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
53 Fed. Appx. 804; 2002 U.S. App.
December 2, 2002 **, Submitted
** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
December 10, 2002, Filed
NOTICE: [**1] RULES OF THE NINTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
PRIOR HISTORY: Appeal from the United States District Court for the Central District of California. D.C. No. CV-99-04471-LGB. Lourdes G. Baird, District Judge, Presiding.
DISPOSITION: Affirmed in part, vacated in part, and remanded.
COUNSEL: G. DANIEL WALKER, Plaintiff-Appellant, Pro se, Tehachapi, CA.
BRUCE A. CLARK, JAMES M STUART, JOHN I. KELLY, CLARENCE WESTRA, L. M. MCGILLIVAY, R. RANDALL, A. WALLACE, LEE FELICE, R. ANSPACH, B. J. WEST, R. J. OBERHOLZER, K. TWISSELMAN, S. CHAPIN, STEPHEN P. GILDNER, J. STUBBE, TERRY MCNALLY, J. WOODARD, J. OLGEBY, D. ECKERT, S. GRANES, C. CHICKY, KERN COUNTY, KERN COUNTY SUPERIOR COURT, MICHAEL SHEA, TOM L. CAREY, CAL TERHUNE, S. WHITTACH, T. VAUGHN, I. SINGER, CALIFORNIA DEPARTMENT OF CORRECTIONS, CALIFORNIA CORRECTIONAL INSTITUTION STATE PRISON, THOMAS F. PAGE, K. ANTHONY, ILLINOIS DEPARTMENT OF CORRECTIONS, Defendants-Appellees: No appearance.
JUDGES: Before: GOODWIN, TROTT, and GRABER, Circuit Judges.
OPINION:
[*805] MEMORANDUM *
* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
[**2]
Before: GOODWIN, TROTT, and GRABER, Circuit Judges.
G. Daniel Walker appeals pro se the district court's judgment dismissing his second amended complaint alleging Racketeer Influenced and Corrupt Organizations Act ("RICO") and civil rights claims against prison officials and state agencies in California and Illinois. We have jurisdiction under 28 U.S.C. § 1291. We review de novo dismissals for failure to state a claim under the screening provisions of the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm in part, vacate in part, and remand.
The district court correctly found that Walker's claims against the California Department of Corrections, the Illinois Department of Corrections, the California Correctional Institution in Tehachapi, and the Kern County Superior Court are barred by the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984); see also Bair v. Krug, 853 F.2d 672, 674-75 (9th Cir. 1988)(RICO does not override a state's sovereign [**3] immunity); [*806] Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987)(concluding that Eleventh Amendment immunity applies to Superior Courts in California).
The district court correctly dismissed Walker's RICO claims against the remaining defendants because the second amended complaint failed to allege sufficient facts to demonstrate that they engaged in racketeering activity. See Bowen v. Oistead, 125 F.3d 800, 806 (9th Cir. 1997)(civil rights violations do not fall within the statutory definition of racketeering activity). To the extent that Walker seeks to allege predicate acts of mail or wire fraud, he failed to plead fraud with sufficient particularity. See Moore v. Kayport Package Express, Inc., 885 F.2d 531, 541 (9th Cir. 1989) (applying the particularity requirements of Fed. R. Civ. P. 9(b) to RICO claims). The district court also correctly dismissed Walker's 42 U.S.C. § 1985(2) claims because he failed to allege any racial or class-based discriminatory animus. See Bretz v. Kelman, 773 F.2d 1026, 1028(9th Cir. 1985)(en banc).
The district court [**4] erred by dismissing Walker's 42 U.S.C. § 1983 claims for failure to exhaust administrative remedies because nonexhaustion is a defense that must be raised and proved by the defendants, and Walker has not conceded nonexhaustion. See Wyatt v. Terhune, 305 F.3d 1033, 1044-46 (9th Cir. 2002). The district court also incorrectly concluded that the individual defendants were immune from suit under the Eleventh Amendment because Walker sued these defendants in their personal capacities. See Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999) (presuming that individually named officials were sued in their personal capacities even though complaint was not explicit) (citations omitted).
Moreover, Walker's second amended complaint contains sufficient facts to state a claim under section 1983. The complaint alleges that the defendants: (1) confiscated and failed to ship his legal files and other legal material when he was transferred from Illinois to California, which caused Walker to default in several cases; (2) intercepted his outgoing mail and prevented documents from being filed in court; and (3) seized his computer equipment and [**5] several typewriters, which prevented Walker from submitting pleadings because they were not typewritten. Although we express no opinion as to the merits of the case, if proven, these allegations are sufficient to state a claim. See, e.g., Lewis v. Casey, 518 U.S. 343, 346, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1996)(prisoners have constitutional right of access to courts); Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995)(per curiam)(prisoners have First Amendment right to send and receive mail). n1
n1 To the extent that Walker is attempting to state a section 1983 claim for deprivation of property, the district court properly dismissed this claim. See Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994)(per curiam)(holding that deprivation of a prisoner's property fails to state a claim under section 1983 because California state law provides an adequate post-deprivation remedy).
Accordingly, we vacate the portion of the district court's judgment dismissing [**6] Walker's section 1983 claims as to the individual defendants and remand for service of process on these defendants. We affirm the remainder of the district court's judgment.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
No. 01-57112
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
53 Fed. Appx. 804; 2002 U.S. App.
December 2, 2002 **, Submitted
** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
December 10, 2002, Filed
NOTICE: [**1] RULES OF THE NINTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
PRIOR HISTORY: Appeal from the United States District Court for the Central District of California. D.C. No. CV-99-04471-LGB. Lourdes G. Baird, District Judge, Presiding.
DISPOSITION: Affirmed in part, vacated in part, and remanded.
COUNSEL: G. DANIEL WALKER, Plaintiff-Appellant, Pro se, Tehachapi, CA.
BRUCE A. CLARK, JAMES M STUART, JOHN I. KELLY, CLARENCE WESTRA, L. M. MCGILLIVAY, R. RANDALL, A. WALLACE, LEE FELICE, R. ANSPACH, B. J. WEST, R. J. OBERHOLZER, K. TWISSELMAN, S. CHAPIN, STEPHEN P. GILDNER, J. STUBBE, TERRY MCNALLY, J. WOODARD, J. OLGEBY, D. ECKERT, S. GRANES, C. CHICKY, KERN COUNTY, KERN COUNTY SUPERIOR COURT, MICHAEL SHEA, TOM L. CAREY, CAL TERHUNE, S. WHITTACH, T. VAUGHN, I. SINGER, CALIFORNIA DEPARTMENT OF CORRECTIONS, CALIFORNIA CORRECTIONAL INSTITUTION STATE PRISON, THOMAS F. PAGE, K. ANTHONY, ILLINOIS DEPARTMENT OF CORRECTIONS, Defendants-Appellees: No appearance.
JUDGES: Before: GOODWIN, TROTT, and GRABER, Circuit Judges.
OPINION:
[*805] MEMORANDUM *
* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
[**2]
Before: GOODWIN, TROTT, and GRABER, Circuit Judges.
G. Daniel Walker appeals pro se the district court's judgment dismissing his second amended complaint alleging Racketeer Influenced and Corrupt Organizations Act ("RICO") and civil rights claims against prison officials and state agencies in California and Illinois. We have jurisdiction under 28 U.S.C. § 1291. We review de novo dismissals for failure to state a claim under the screening provisions of the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm in part, vacate in part, and remand.
The district court correctly found that Walker's claims against the California Department of Corrections, the Illinois Department of Corrections, the California Correctional Institution in Tehachapi, and the Kern County Superior Court are barred by the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984); see also Bair v. Krug, 853 F.2d 672, 674-75 (9th Cir. 1988)(RICO does not override a state's sovereign [**3] immunity); [*806] Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987)(concluding that Eleventh Amendment immunity applies to Superior Courts in California).
The district court correctly dismissed Walker's RICO claims against the remaining defendants because the second amended complaint failed to allege sufficient facts to demonstrate that they engaged in racketeering activity. See Bowen v. Oistead, 125 F.3d 800, 806 (9th Cir. 1997)(civil rights violations do not fall within the statutory definition of racketeering activity). To the extent that Walker seeks to allege predicate acts of mail or wire fraud, he failed to plead fraud with sufficient particularity. See Moore v. Kayport Package Express, Inc., 885 F.2d 531, 541 (9th Cir. 1989) (applying the particularity requirements of Fed. R. Civ. P. 9(b) to RICO claims). The district court also correctly dismissed Walker's 42 U.S.C. § 1985(2) claims because he failed to allege any racial or class-based discriminatory animus. See Bretz v. Kelman, 773 F.2d 1026, 1028(9th Cir. 1985)(en banc).
The district court [**4] erred by dismissing Walker's 42 U.S.C. § 1983 claims for failure to exhaust administrative remedies because nonexhaustion is a defense that must be raised and proved by the defendants, and Walker has not conceded nonexhaustion. See Wyatt v. Terhune, 305 F.3d 1033, 1044-46 (9th Cir. 2002). The district court also incorrectly concluded that the individual defendants were immune from suit under the Eleventh Amendment because Walker sued these defendants in their personal capacities. See Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999) (presuming that individually named officials were sued in their personal capacities even though complaint was not explicit) (citations omitted).
Moreover, Walker's second amended complaint contains sufficient facts to state a claim under section 1983. The complaint alleges that the defendants: (1) confiscated and failed to ship his legal files and other legal material when he was transferred from Illinois to California, which caused Walker to default in several cases; (2) intercepted his outgoing mail and prevented documents from being filed in court; and (3) seized his computer equipment and [**5] several typewriters, which prevented Walker from submitting pleadings because they were not typewritten. Although we express no opinion as to the merits of the case, if proven, these allegations are sufficient to state a claim. See, e.g., Lewis v. Casey, 518 U.S. 343, 346, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1996)(prisoners have constitutional right of access to courts); Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995)(per curiam)(prisoners have First Amendment right to send and receive mail). n1
n1 To the extent that Walker is attempting to state a section 1983 claim for deprivation of property, the district court properly dismissed this claim. See Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994)(per curiam)(holding that deprivation of a prisoner's property fails to state a claim under section 1983 because California state law provides an adequate post-deprivation remedy).
Accordingly, we vacate the portion of the district court's judgment dismissing [**6] Walker's section 1983 claims as to the individual defendants and remand for service of process on these defendants. We affirm the remainder of the district court's judgment.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.