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April 17, 2003


The opinion of the court was delivered by: William Alsup, United States District Judge


Plaintiff, an inmate at Salinas Valley State Prison, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. The court dismissed the complaint with leave to amend. Plaintiff has amended, so the Court will now conduct a review of the amended complaint.


A. Standard of Review

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

B. Legal Claims

Plaintiff had a civil rights case in the United States District Court for the Central District of California. That court ordered the attorney general to provide the court with a copy of a video tape of an incident at issue in that case, and to allow plaintiff to see it. He alleges that the tape was received at the prison on September 30 or October 1, 2001. On February 18, 2002, plaintiff filed an administrative appeal complaining that he still had not been able to see the tape. Plaintiff alleges that defendant Randolph did not allow him to view it until February 27, 2002. He asserts that as a result of the delay, he had to file his "informal opening brief" in the court of appeals without having seen the tape. As a result of seeing the tape he filed an addendum in which he attempted to amend the complaint to add three new defendants. The court of appeals granted the Attorney General's motion to disregard the addendum as improper. Plaintiff did not ask the court of appeals to extend the time for him to file his opening brief.

Plaintiff claims that Randolph's failure to allow him to see the video tape in a reasonable time violated his right of access to the courts, and that defendant Luman knew Randoph was not allowing plaintiff to see the tape but did nothing.

Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). In Sands v. Lewis, 886 F.2d 1166 (1989), the Ninth Circuit divided such cases into two categories: (1) those which assert inadequate law libraries or alternative sources of legal knowledge sufficient to prepare a suit, and (2) all others. Id. at 1171. This is an "all others" case. As to the second category, the court required proof of "actual injury" to state a claim. Id. The court did not require actual injury for the first category, id., but that part of the holding was overruled by Lewis v. Casey, 518 U.S. at 350-55. In short, whether a prisoner's claim is that a prison law library is inadequate or is that official action somehow blocked his access to the court, he or she must allege "actual injury."

The only actual injury plaintiff alleges here is that he was unable to include his request to amend the complaint to add three new defendants in his opening brief in the court of appeals, rather than in an "addendum." Given the review function of appellate courts, this obviously was not a request which would have succeeded, however raised. Furthermore, plaintiff did not request an extension of time to file his opening brief from the court of appeals. He contends that he did not ask because that court had already given him "an extensive period of time to file the opening brief," and because of the "blatant[]" nature of defendants' actions in not allowing him to see the tape. The second reason is irrelevant, and the first does not suggest that the court of appeals would have been unsympathetic had he explained his difficulty. There is no contention that he had already received extensions, so presumably the "extensive" time period to which he refers is just the usual time for filing an opening brief.

Plaintiff has failed to allege actual injury, despite being given an opportunity to do so and an explanation of the applicable law. The complaint will be dismissed.


This case is DISMISSED with prejudice. The clerk shall ...

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