Lewis v. Alison et al
Filing
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FINDINGS and RECOMMENDATIONS Regarding Dismissal of Certain Claims, signed by Magistrate Judge Barbara A. McAuliffe on 12/10/2013, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)
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EASTERN DISTRICT OF CALIFORNIA
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HOMER TYRONE LEWIS,
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Plaintiff,
v.
KATHLEEN ALISON, et al.,
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Defendants.
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1:12-cv-00856-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN
CLAIMS
THIRTY-DAY DEADLINE
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I.
Screening Requirement and Standard
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Plaintiff Homer Tyrone Lewis (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 25, 2013, the
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Court directed Plaintiff either to file a third amended complaint or to notify the Court of his
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willingness to proceed on the cognizable claims in his second amended complaint. (ECF No.
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20.) Plaintiff’s third amended complaint, filed on November 18, 2013, is currently before the
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Court for screening. (ECF No. 21.)
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §
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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or
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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28
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U.S.C. § 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65
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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge
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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)
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(internal quotation marks and citation omitted).
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To survive screening, Plaintiff’s claims must be facially plausible, which requires
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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable
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for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted);
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Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility
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that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short
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of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks
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omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations
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II.
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Plaintiff is currently housed at California State Prison, Lancaster located in Lancaster,
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California. The events complained about allegedly occurred while Plaintiff was housed at the
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California Substance Abuse Treatment Facility (“CSATF”) located in Corcoran, California.
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Plaintiff names CSATF Interim Warden Kathleen Alison, Corcoran State Prison Interim Warden
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Derral G. Adams, Corcoran State Prison Chief Deputy Warden Maurice Junious, CSATF
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Facility Captain P. Denny, CSATF Officer G. Parra, and CSATF Officer R. Garza in their
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individual and official capacities as defendants.
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Plaintiff alleges as follows: On January 31, 2011, Plaintiff was in his assigned bunk in
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Facility “D” Building when the control booth officer opened the cell door. Defendant G. Parra
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approached Plaintiff’s cell door and issued an order for Plaintiff to stand up and step outside the
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cell. When Plaintiff complied, Defendant Parra handcuffed Plaintiff, escorted him to the Facility
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“D” program office and placed him into a holding cell. Defendant Parra informed Plaintiff that it
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was ordered by Defendants Alison and Denny that Plaintiff be removed from Facility “D”
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Building and placed in Administrative Segregation (“Ad-Seg”) for allegations of threat to murder
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a correctional officer on Facility “D.”
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While Plaintiff was in the holding cell, Defendant Parra informed Plaintiff that she was
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going to conduct a cell search of Plaintiff’s assigned cell. After Defendant Parra completed the
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search, she confiscated three boxes of Plaintiff’s civil file pertaining to his pending civil case,
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Case No. 1:10cv00266 LJO DLB, along with legal transcripts and law books. Defendant Parra
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brought all three boxes to the Facility “D” program office to be reviewed by the Investigative
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Services Unit (“ISU”). Plaintiff asked Defendant Parra why only his legal materials were being
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confiscated, but Defendant Parra refused to answer. Plaintiff later learned that the cell search
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and confiscation of legal materials was witnessed by inmate Daniel Masterson.
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On February 1, 2011, Defendant Denny came to Ad-Seg and held Plaintiff’s CDC 114-D
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unit placement hearing. During this interview, Defendant Denny stated, “This Ad-Seg
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placement will teach you not to file lawsuits against my former boss, Derral G. Adams.” (ECF
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No. 21, p 7.)
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On February 22, 2011, Plaintiff followed prison procedure and submitted a CDCR-22
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request form to Defendant Parra through institutional mail. Plaintiff requested return of all of his
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legal materials.
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On February 28, 2011, Defendant Parra responded to Plaintiff in writing, stating “All of
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your legal materials [were] collected by 3rd/W Facility “D” Officer Carlos. Therefore you need
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to forward an inmate request for interview to Officer Carlos.” (ECF No. 21, p. 7.)
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Dissatisfied with Defendant Parra’s response, Plaintiff continued to exhaust his
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administrative remedies. Plaintiff responded by filling out Section C of the CDCR-22 request
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form for supervisor review on March 9, 2011. Plaintiff forwarded the CDCR-22 form to
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Defendant Parra’s supervisor via institutional mail.
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On the morning of March 14, 2011, Defendant Denny came to Ad-Seg on Facility “E”
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and held CDC 114-D hearings for other inmates. After Defendant Denny completed his
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hearings, he approached Plaintiff’s cell door and stated, “I was informed by Kathleen Alison that
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you . . . recently filed a staff complaint against me and the attorney’s office informed me that you
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sent a letter to them about the statement I made to you on February 1, 2011, about filing lawsuits
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against my former boss Mr. Derral Adams, and sent letter to the federal court in a motion, and
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now that I have your evidence and other legal materials out of your legal materials to support
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your lawsuit, that’s the last time you’ll pursue lawsuits against my colleague[]s at Corcoran
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Prison.” (ECF No. 21, pp. 7-8.)
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On March 23, 2011, Defendant Parra’s supervisor, M. Ramirez, responded to Plaintiff’s
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request form and stated, “Officer Parra was the initial person who confiscated your written
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materials. However, to expedite the review process, officer [C]arlos collected said property from
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ISU and reviewed it. Officer Carlos subsequently returned your property upon completion of his
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review. ISU nor Parra has any of your property. Therefore, this matter is resolved.” (ECF No.
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21, p. 8.)
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Plaintiff alleges that Defendants tried to obtain their advantage with this Court to get
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Plaintiff’s pending civil case dismissed when defense counsel filed their motion to dismiss on
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March 14, 2011. Plaintiff alleges that this is the exact date that Defendant Denny approached
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Plaintiff’s cell door and informed Plaintiff that he had Plaintiff’s legal materials.
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Plaintiff alleges that Defendants Adams and Junious engaged in a conspiracy to retaliate
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against Plaintiff when they were served with Plaintiff’s civil action in February 2011. Plaintiff
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claims that Defendants conspired together and held all of Plaintiff’s legal materials in the ISU
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office at SATF from January 31, 2011 to July 8, 2011 per the order of Defendant Denny, which
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is documented by Defendant Garza on May 25, 2011.
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Plaintiff further alleges that he repeatedly requested the return of his legal materials while
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in Ad-Seg. Defendants Alison and Adams, in their supervisory positions, failed to take
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disciplinary action against the remaining defendants.
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On June 10, 2011, Plaintiff was scheduled for transfer from CSATF to Lancaster State
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Prison. While Plaintiff was awaiting transfer in a holding cell, Defendant Garza came to
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interview Plaintiff regarding his inmate grievance. During this interview, Defendant Garza, in
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front of an inmate witness, stated, “Mr. Lewis, Im hear [sic] to interview you about 602 appeal
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on missing legal materials and to inform you that Mr. Adams, Warden and Mr. Junious, Chief
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Deputy Warden at [Corcoran State Prison] ordered Captain P. Denny to get your legal materials
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for them, and after Captain P. Denny and ISU reviewed it, the Captain confiscated [1-Box] of
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legal materials, and then I personally consolidated the rest of your legal materials into 2-boxes.”
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(ECF No. 21, p. 9.)
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Plaintiff asserts the following causes of action: (1) retaliation in violation of the First
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Amendment against Defendants Alison, Adams, Junious, Denny, Parra and Garza; (2) a violation
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of due process/access to courts; and (3) violation of California Penal Code § 2601.
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III.
Discussion
A. Official Capacity and Eleventh Amendment Immunity
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As previously explained to Plaintiff, he may not bring suit for money damages against
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Defendants in their official capacities. The Eleventh Amendment prohibits suits for monetary
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damages against a State, its agencies, and state officials acting in their official capacities.
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Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir.2007). A suit against a state
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official in his official capacity equates to a suit against the state employing that official, Hafer v.
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Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), effectively barring a plaintiff
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from bringing suit on these grounds. However, the Eleventh Amendment does not bar a suit for
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monetary damages against a state official sued in his individual capacity. Id. Accordingly, the
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Court recommends that Plaintiff’s claims for damages against Defendants in their official
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capacities be dismissed.
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B. First Amendment - Retaliation
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Plaintiff claims that Defendants Alison, Adams, Junious, Denny, Parra and Garza
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retaliated against him for filing a civil lawsuit. Within the prison context, a viable claim of First
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Amendment retaliation consists of five elements: “(1) An assertion that a state actor took some
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adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that
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such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did
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not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567
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(9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); Brodheim v.
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Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).
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A plaintiff suing for retaliation under section 1983 must allege that “he was retaliated
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against for exercising his constitutional rights and that the retaliatory action does not advance
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legitimate penological goals, such as preserving institutional order and discipline.” Barnett v.
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Centoni, 31 F.3d 813, 816 (9th Cir. 1994). The plaintiff does not need to show actual inhibited
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or suppressed speech, but that there was a chilling effect upon his speech. Rhodes, 408 F.3d at
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569. The burden is on the plaintiff to plead and prove the absence of any legitimate correctional
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goals for the alleged conduct. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).
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Plaintiff has stated a cognizable claim for retaliation against Defendants Alison, Adams,
Junious, Denny, Parra and Garza in their individual capacities.
C. Violation of Due Process/Access to Courts
Plaintiff claims a violation of his right to access the courts. Inmates have a fundamental
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constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346, 116 S.Ct. 2174,
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135 L.Ed.2d 606 (1996). The right of access is merely the right to bring to court a grievance the
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inmate wishes to present, and is limited to direct criminal appeals, habeas petitions, and civil
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rights actions. Id. at 354. Claims for denial of access to the courts may arise from the frustration
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or hindrance of “a litigating opportunity yet to be gained” (forward-looking access claim) or
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from the loss of a meritorious suit that cannot now be tried (backward-looking claim).
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Christopher v. Harbury, 536 U.S. 403, 412-15, 122 S.Ct. 2179, 2185–87, 153 L.Ed.2d 413
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(2002). A prisoner alleging a violation of his right of access to the courts must demonstrate that
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he has suffered “actual injury.” Lewis, 518 U.S. at 349–50. The actual-injury requirement
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mandates that an inmate “demonstrate that a nonfrivolous legal claim had been frustrated or was
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being impeded.” Id. at 353. The Supreme Court rejected the notion that the state must enable a
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prisoner to “litigate effectively once in court.” Id. at 354 (quoting and disclaiming language
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contained in Bounds v. Smith, 430 U.S. 817, 825–26, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)); see
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also Cornett v. Donovan, 51 F.3d 894, 898-900 (9th Cir.1995) (determining that prisoners’ right
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of access to the courts is limited to the pleading stage of a civil rights action or petition for writ
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of habeas corpus).
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Here, Plaintiff appears to be challenging the confiscation of his legal materials related to
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pending civil action 1:10-cv-00266-LJO-DLB. Plaintiff has failed to allege that he was
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prevented from filing his complaint in that action. Rather, Plaintiff is complaining about his
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ability to effectively litigate once in court. However, the Court notes that the parties reached a
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settlement agreement in civil action 1:10-cv-00266-LJO-DLB. Plaintiff therefore has failed to
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state a cognizable claim for denial of access to the courts. Lewis, 518 U.S. at 354. Accordingly,
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the Court recommends that Plaintiff’s denial of access to the courts claim be dismissed.
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D. Penal Code Violation
Plaintiff seeks to impose liability against Defendants based on an alleged violation of
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California Penal Code § 2601. In particular, Plaintiff claims that Defendants violated his section
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2601 right to inherit, own, sell or convey real or personal property, including all written and
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artistic material produced or created by the person during imprisonment. However, the right
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does not extend to possession of any particular property in prison. The Court finds that Plaintiff
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fails to state a claim upon which relief may be granted based on an alleged violation of Penal
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Code § 2601. Accordingly, it is recommended that this claim be dismissed.
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E. Declaratory Relief
In addition to damages, Plaintiff seeks a declaration that his rights were violated. “A
declaratory judgment, like other forms of equitable relief, should be granted only as a matter of
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judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood
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Village, 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither
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serve a useful purpose in clarifying and settling the legal relations in issue nor terminate the
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proceedings and afford relief from the uncertainty and controversy faced by the parties.” United
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States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). In the event that this action reaches
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trial and the jury returns a verdict in favor of Plaintiff, the verdict will be a finding that Plaintiff’s
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constitutional rights were violated. Accordingly, a declaration that any defendant violated
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Plaintiff’s rights is unnecessary.
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III.
Conclusion and Order
Plaintiff’s complaint states a cognizable claim of retaliation in violation of the First
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Amendment against Defendants Alison, Adams, Junious, Denny, Parra and Garza in their
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individual capacities, but does not state any other claims for relief under section 1983.
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As Plaintiff was provided with the relevant legal standards and was given multiple
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opportunities to file an amended complaint, the Court does not recommend granting further leave
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to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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1.
This action proceed on Plaintiff’s third amended complaint, filed on November
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18, 2013, against Defendants Alison, Adams, Junious, Denny, Parra and Garza in their individual
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capacities for retaliation in violation of the First Amendment.
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2.
Plaintiff’s claims for damages against Defendants in their official capacities be
DISMISSED;
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Plaintiff’s denial of access to the courts and California Penal Code § 2601 claims
be DISMISSED from this action; and
Plaintiff’s request for declaratory relief be DISMISSED.
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4.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within
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thirty (30) days after being served with these Findings and Recommendations, the plaintiff may
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file written objections with the Court. The document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file
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objections within the specified time may waive the right to appeal the District Court’s order.
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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
December 10, 2013
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A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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