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MITCHELL v. BRANHAMD

United States District Court, S.D. California


September 27, 2005.

ROBERT MITCHELL, Plaintiff,
v.
BRANHAMD, GUTHRIE, DURAZO, MARQUEZ, et al., Defendants.

The opinion of the court was delivered by: WILLIAM HAYES, District Judge

ORDER (1) ADOPTING IN PART AND DENYING IN PART REPORT AND RECOMMENDATION; AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
Defendants Branhamd, Guthrie, Durazo, Marquez, Chacon, Bocanegra, and Rodriquez move to dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6) [Doc. No. 16]. The Court finds this matter suitable for decision on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1). After considering the arguments raised by the parties in their briefings, the Court now issues the following rulings.

BACKGROUND

  On July 2, 2002, Plaintiff, then incarcerated at Centinela State Prison, was executing documents in the prison law library for a state civil rights action he brought against the Orange County Sheriff's Department. Complaint, pp. 5-6. Defendant Salgado, a law library assistant, alerted correctional officers of Plaintiff's activities and told them that he "was processing [c]ivil [c]omplaints." Id. Subsequently, Defendant correctional officers ordered Plaintiff to leave the library and confiscated his legal papers, despite Plaintiff's explanation that he was almost done and the only task remaining was the mailing of his legal materials. Id. Although Plaintiff's legal materials were returned to him one week later, Plaintiff alleges that as a result of Defendant's conduct, he was denied access to the courts and his case was dismissed. Id. at 6.

  On December 16, 2002, Plaintiff commenced an action, Mitchell v. Dep't of Corr., et al., 02cv2467-K, in which he stated the aforementioned factual allegations and injuries. Plaintiff alleged the following causes of action in his First Amended Complaint: (1) denial of access to state courts; (2) retaliation; (3) interference with prison grievance procedures; (4) denial of due process by confiscation of Plaintiff's legal materials; (5) negligence; and (6) "torts in essence." Dep't of Corr. First Amended Complaint, p. 7-16. On April 21, 2003, The Honorable Judith N. Keep dismissed the First Amended Complaint for failure to state a claim. Dep't of Corr. April 21, 2003 Order, p. 2. The Order dismissed without prejudice Plaintiff's retaliation claim and all state law claims, however, the access-to-courts and interference with prison grievance procedures claims were dismissed with prejudice. Id. at 6. Subsequently, Plaintiff's Second Amended Complaint was also dismissed without prejudice on March 2, 2004. Dep't of Corr. March 2, 2004 Order, p. 4. The Order granted leave to file a third amended complaint, but limited Plaintiff's claims to retaliation and state law claims. Id.

  Instead of filing a third amended complaint, Plaintiff commenced a new action on March 12, 2004 asserting factual allegations identical to that alleged in Dep't of Corr. Plaintiff now asserts five causes of action: (1) retaliation; (2) interference with access to the courts; (3) "torts in essence;" (4) equal protection; and (5) negligence. Complaint, p. 5-14. Additionally, Plaintiff seeks injunctive relief that will prevent Defendants "[f]rom threating [sic], punishing Plaintiff and/or his witnesses in anyway. [sic] because he has filed this action." Id. at 19.

  Currently pending before the Court is Defendants' Motion to Dismiss. On August 18, 2005, Magistrate Judge William McCurine, Jr. issued a Report and Recommendation ("R&R") that recommended this Court grant Defendants' Motion in part and deny it in part. R&R, p. 12. No objections were filed by either party. The Court now issues the following rulings.

  STANDARD OF REVIEW

  A Rule 12(b)(6) motion tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal of a claim under Rule 12(b)(6) is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Navarro, 250 F.3d at 732. Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law"). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534.

  In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Robertson v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). "Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended by 275 F.3d 1187 (9th Cir. 2001). When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the Court takes judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994); MGIC Indem. Co. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). The duties of the district court in connection with a Magistrate Judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

  When no objections are filed, the district court may assume the correctness of the Magistrate Judge's factual findings and decide the motion on the applicable law. See Campbell v. United States Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds by Simpson v. Lear Astronics Corp., 338 F.3d 1170, 1174 (9th Cir. 1996).

  DISCUSSION

  On August 18, 2005, Magistrate Judge McCurine issued a R&R recommending the Court grant in part and deny in part Defendants' Motion to Dismiss. Specifically, the R&R recommended granting Defendants' Motion to Dismiss regarding Plaintiff's prayer for injunctive relief, but recommended denying the Motion regarding Plaintiff's claims for retaliation, qualified immunity, and negligence. Further, the Magistrate recommended denying in part and granting in part with "at least one opportunity to amend" Plaintiff's claim for interference with access to the courts.

  Because neither party filed objections to the R&R, the Court will accept the facts stated in the R&R as true. See Barilla, 886 F.2d at 1518. However, the Court will review the conclusions of law de novo. Id. For the reasons articulated below, the Court will adopt in part and modify in part the findings set forth in the R&R, and will grant in part and deny in part Defendants' Motion to Dismiss. I. Retaliation

  The R&R states that Plaintiff sufficiently alleged that Defendants "confiscated" his legal papers in retaliation for his civil rights action against the Orange County Sheriff's Department. R&R, p. 3. The R&R correctly recommends that Defendants' Motion to Dismiss regarding Plaintiff's First Amendment retaliation claim should be denied.

  Five elements are necessary to establish a First Amendment retaliation claim in the prison context:

Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.
Rhodes v. Robinson, 408 F.3d 559, 567-568 (9th Cir. 2004). "In a constitutional tort, as in any other, a plaintiff must allege that the defendant's actions caused him some injury." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). However, the Ninth Circuit has held that "any retribution visited upon a prisoner due to his decision to engage in protected conduct is sufficient to ground a claim of unlawful First Amendment retaliation — whether such detriment `chills' the plaintiff's exercise of his First Amendment rights or not." Rhodes v. Robinson, 380 F.3d 1123, 1131 (9th Cir. 2004), overruled on other grounds.*fn1

  Although the Court modifies the elements of the Rhodes test stated in the R&R, the Court finds that the R&R correctly states that Plaintiff has sufficiently alleged a First Amendment retaliation claim.*fn2 R&R, p. 3-4. In the Complaint, Plaintiff alleged that on July 2, 2004, Defendants "[c]onfiscated" his legal materials, despite the fact that his only remaining task was to mail documents. Complaint, p. 5. Additionally, the Complaint alleged that Defendants' actions were prompted by Plaintiff's "processing [of] [c]ivil [c]omplaints" and were in retaliation for Plaintiff's § 1983 civil rights complaint against the Orange County Sheriff's Department. Id. at 8. Moreover, Plaintiff properly argues that the exercise of his First Amendment rights were chilled when he was prevented from filing necessary documents required for his § 1983 action, resulting in its dismissal. Id. Further, Plaintiff asserts that Defendants' ". . . retaliatory acts did not advance or support any legitimore penalogical [sic] goals . . ." Id. Accordingly, the Court finds that Plaintiff has properly alleged the elements necessary to support a viable claim of First Amendment retaliation.

  Defendants argue that their actions could not have been in retaliation for Plaintiff's exercise of his First Amendment rights because Defendants did not know that Plaintiff was working on a civil complaint. However, the Complaint alleges, "The [P]laintiff repeatedly tried to explan [sic] to the [D]efendants that he had a court deadline, in which [sic] to have his legal documents filed with the court and all he needed to do was address his envelopes and mail out his documents." Id. at 5. The R&R correctly states, "On its face, these statements demonstrate that all the named [D]efendants had knowledge that [P]laintiff was engaged in a protected activity and that their actions could be construed as arising from a desire to interfere with that protected activity." R&R, p. 5.

  Accordingly, the Court finds that Plaintiff's allegations satisfy the Rhodes test and, thus, Plaintiff sufficiently alleges a First Amendment retaliation claim. Therefore, the Court adopts the R&R as to this claim and denies Defendants' Motion to Dismiss Plaintiff's retaliation claim.

  II. Interference with Access to the Courts

  The R&R recommends denying in part and granting in part Defendants' Motion to Dismiss Plaintiff's claim that Defendants' actions interfered with his access to the state courts. The Court respectfully declines to follow the R&R's recommendations and instead grants Defendants' Motion in this regard.

  Plaintiff's Complaint alleges, "By the [D]efendants confiscating, withholding and denying [P]laintiff the right to mail his legal documents to court, Plaintiff was unable to serve these and/or comply with the rules of the court, resulting in his Orange County Superior Court Civil Case No. 02CC05534 being dismissed for failing to prosecute time barred." Complaint, p. 6-7. Defendants misinterpreted Plaintiff's claim as being for both interference with prison grievances and interference with access to state courts. Motion, p. 5-6. Although Plaintiff's Complaint in the prior case of Mitchell v. Dep't of Corr., et al., 02cv2467-K, alleged both causes of action, Plaintiff's Complaint in the instant case makes no reference to a claim for prison grievance procedures. In denying Defendants' Motion, the R&R incorrectly finds that the court's dismissal in the prior case of Dep't of Corr. was limited to Plaintiff's claim for interference with prison grievance procedures.*fn3 R&R, p. 7; Compare Motion, p. 5-6; with Dep't of Corr. April 21, 2003 Order, p. 4-5; and Dep't of Corr. March 2, 2004 Order, p. 3. To the contrary, the court in Dep't of Corr. dismissed with prejudice Plaintiff's claim for interference with access to the courts, in addition to Plaintiff's claim for interference with prison grievance procedures. Dep't of Corr. April 21, 2003 Order, p. 4-5; see also Dep't of Corr. March 2, 2004 Order, p. 3.

  In the instant case, Plaintiff effectively brought an identical action as was first lodged in the previous case of Dep't of Corr. In Dep't of Corr., Plaintiff's Complaint states:

On July 2, 2002, while attending the [l]aw [l]ibrary, Sgt.Branham entered with several lower ranking correctional officers, Officers Durazo, Marquez, R. Chacon, Bocanegra, and J. Rodriguez, then along with Officer Guthrie and Library Assistant L. Salgado, ordered the Plaintiff out of the [l]aw [l]ibrary. . . . The Plaintiff repeatedly tried to explain to the Defendants, that he had a [c]ourt deadline, in which to have his legal documents filed with the Court and all he needed was "five" additional minutes to address his envelopes and mail out his documents . . . [T]he Plaintiff's legal documents were "confiscated" by the Defendants and the Plaintiff was returned to his housing unit. From July 2, 2002 to July 9, 2002, the Defendants refused to return any of the Plaintiff's legal document. On July 9, 2002 approximately one(1) week after the Defendants had "confiscated" the Plaintiff's legal materials, the Plaintiff was called over to the [l]aw [l]ibrary and his legal documents . . . were mailed out . . . By the Defendants "[r]etaliating and [c]onfiscating" the Plaintiff's legal documents, the Plaintiff was unable to meet the Court's [f]iling deadline. As a result of the indifference and subsequent "[r]etaliation" and "[d]enial of access to the courts" by the Defendants, the Plaintiff's [d]irect [a]ppeal and [n]on-[f]rivolous [c]ivil [r]ights [c]omplaint were dismissed for failing to serve process, and failing to meet the [s]tatute of [l]imitations. (sic)
Dep't of Corr. First Amended Complaint, p. 4-6. In the case at bar, Plaintiff's Complaint avers:
On July 2, 2002, the [P]laintiff was attending the [l]aw [l]ibrary, when Correctional Officer Guthrie and Librarian [A]ssistant L. Salgado called Sergeant Branhamwd and informed him that [P]laintiff was processing [c]ivil complaints. . . . Defendants Branhamwd, Durazo, I. Marquez, R. Chacon, Bocanegra and J. Rodriguez entered the inmate [l]aw [l]ibrary, they, along with [D]efendants Guthrie and L. Salgado "[c]onfiscated" all of Plaintiff's [l]egal [m]aterials and ordered him out of the [l]aw [l]ibrary . . . The [P]laintiff repeatedly tried to explan to the [D]efendants that he had a court deadline, in which to have his legal documents filed with the court and all he needed to do was address his envelopes mail out his documents. . . . From July 2, 2002 to July 9, 2002 the [D]efendants refused to return any of [P]laintiff's legal materials and denied [P]laintiff the right to mail out any legal documents. On July 9, 2002, approximately one (1) week after the [D]efendant "coniscated" [P]laintiff's legal materials, [P]laintiff was called over to the [l]aw [l]ibrary and his legal documents were returned. . . . By the [D]efendants confiscating, withholding and denying [P]laintiff the right to mail his legal documents to court, Plaintiff was unable to serve these and/or comply with the rules of the court, resulting in his Orange County Superior Court [c]ivil [c]ase . . . being dismissed for failing to prosecute time barred. (Sic)
Complaint, p. 5-7. An analysis of the complaint in Dep't of Corr. and in the instant case demonstrates that the Plaintiff's allegations and the named Defendants are one and the same. Both complaints allude to an incident that occurred on July 2, 2002, in which Plaintiff alleges his access to the courts was impeded by the Defendants when they ordered him to leave the law library. Therefore, Plaintiff's access-to-courts claim has already been dismissed with prejudice in Dep't of Corr.

  In Dep't of Corr., Plaintiff asserts the same factual allegations that occurred on July 2, 2002 as are alleged in the instant suit. Additionally, in Dep't of Corr., the Honorable Judith N. Keep dismissed with prejudice Plaintiff's claim for interference with access to the courts. The Court notes that "with prejudice" indicates that Plaintiff's access-to-courts claim was "removed from the Court's docket in such a way that the (P)laintiff is foreclosed from filing a suit again on the same claim or claims." BLACK'S LAW DICTIONARY (8th ed. 2004) (definition of "dismissed with prejudice"). Accordingly, the Court modifies the R&R and grants Defendants' Motion to Dismiss Plaintiff's access-to-courts claim.

  III. Equal Protection

  The R&R recommends the Court dismiss without prejudice Plaintiff's equal protection claim as Plaintiff has voluntarily dismissed this cause of action. R&R, p. 8.

  The Federal Rules of Civil Procedure provide that "an action may be dismissed by the plaintiff without order of the court by filing a notice of dismissal at any time before service of the adverse party of an answer or of a motion for summary judgment . . ." Fed.R.Civ.P. 41(a)(1). "Under Rule 41(a)(1), a plaintiff has an absolute right voluntarily to dismiss his action prior to service by the defendant of an answer or a motion for summary judgment . . . The dismissal is effective on filing and no court order is required." Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996); see Pedrina v. Chun, 987 F.2d 608, 610 (9th Cir. 1993).

  The R&R correctly recommends that ". . . Plaintiff's [e]qual [p]rotection claims be dismissed without prejudice and with leave to amend pursuant to Fed.R.Civ.P. 41(a)(1)."*fn4 R&R, p. 8. Accordingly, the Court adopts the recommendation of the R&R and dismisses Plaintiff's equal protection claim without prejudice.

  IV. "Torts in Essence"

  Plaintiff's Complaint alleges "torts in essence," a state remedy against a public employee pursuant to the California Tort Claims Act. The R&R correctly states that the Court need not reach Plaintiff's "torts in essence" claim due to Plaintiff's voluntary dismissal. R&R, p. 9.

  The Federal Rules of Civil Procedure provide that "an action may be dismissed by the plaintiff without order of the court by filing a notice of dismissal at any time before service of the adverse party of an answer or of a motion for summary judgment . . ." Fed.R.Civ.P. 41(a)(1). "Under Rule 41(a)(1), a plaintiff has an absolute right voluntarily to dismiss his action prior to service by the defendant of an answer or a motion for summary judgment . . . The dismissal is effective on filing and no court order is required." Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996); see Pedrina v. Chun, 987 F.2d 608, 610 (9th Cir. 1993).

  The Court finds that the R&R correctly recommends that the Court dismiss Plaintiff's "torts in essence" claim without prejudice and with leave to amend pursuant to Fed.R.Civ.P. 41(a)(1).*fn5 Therefore, the Court adopts the R&R and grants Defendants' Motion to Dismiss Plaintiff's "torts in essence" claim. V. Qualified Immunity

  The R&R recommends denying Defendants' Motion to Dismiss on qualified immunity grounds. R&R, p. 10. Although the Court finds that the R&R correctly recommends that the Court deny the Motion, the Court modifies the reasoning set forth in the R&R.

  Qualified immunity is an affirmative defense that shields "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In Saucier v. Katz, the U.S. Supreme Court enumerated a two-part test to determine if qualified immunity is warranted. 533 U.S. 194, 201 (2001). First, the court must ask, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. However, if a constitutional right was violated, the court must then determine if the "right was clearly established" in such a way that ". . . the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

  Defendant argues that qualified immunity is appropriate in this case because ". . . the facts alleged do not show their conduct violated a constitutional right." Motion, p. 9. Further, Defendants argue, "Even if this Court finds the facts sufficient to state a constitutional claim, Defendants are still entitled to qualified immunity because, under the second prong in Saucier, a reasonable prison official could have believed their conduct in this case was lawful. Simply put, there is no clearly established policy or legal authority which protects an inmate's pursuit of a civil action which does not challenge the fact, duration or condition of his confinement." Id.

  As Defendants have raised this affirmative defense in a Rule 12(b)(6) motion, the Court must accept all allegations and reasonable inferences drawn from the Complaint as true. Cahill, 80 F.3d at 338. The Court finds that Defendants' argument fails because, as the R&R correctly states, "[p]risoners have a clearly established right to be free from retaliation for participating in protected First Amendment speech activities." R&R, p. 10. It is arguable that, as correctional officers, Defendants should have understood that "confiscation" of Plaintiff's legal papers that needed to be filed within a state court deadline could be actions that violate a plaintiff's constitutional rights.

  Accepting the allegations in the Complaint as true, the Court holds that Defendants are not entitled to qualified immunity as the allegations establish that Defendants plausibly violated Plaintiff's constitutional rights. As such, the Court modifies the reasoning of the R&R, but similarly holds that Defendants' Motion to Dismiss by reason of qualified immunity is denied.

  VI. Negligence

  The R&R states that a liberal reading of the Complaint infers that Defendants were negligent in their actions. R&R, p. 11. The Court finds the R&R correctly recommends that Defendants' Motion to Dismiss Plaintiff's state negligence claim should be denied.

  On a Rule 12(b)(6) motion, Plaintiff's negligence claim may be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46. Actionable negligence requires three elements: (1) a duty of care; (2) breach of such duty; and (3) the breach is a proximate or legal cause of plaintiff's injury. United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., 83 Cal.Rptr. 418, 422 (1970).

  Defendants argue that Plaintiff fails to properly state a negligence claim as the Complaint contains ". . . wholly conclusory statements [that] are unsupported by any specific, material factual allegations." Motion, p. 10. However, the Complaint alleges, ". . . the [D]efendants fell below the standard of care foe [sic] law enforcement anf [sic] correctional emplyees [sic] under the exigency of the circumstances." Complaint, p. 11. Additionally, it states, "The [D]efendants breached their duty of care by disregarding the high probability that their conduct would likely result in physical injuries and mental and emotional distress, shock and anguish to the [P]laintiff." Id. Further, the Complaint alleges that Defendants were the proximate cause of his injuries. Id. Accordingly, the R&R correctly finds, "Reading the Complaint liberally, it can be inferred that, some or all of the Defendants were either responsible for or aware of the alleged negligence and did nothing to prevent it." R&R, p. 11. Based on the current record, the Court finds Plaintiff has sufficiently alleged all of the elements of a negligence claim, and thus, must survive a motion to dismiss at this time. Therefore, the Court will adopt the R&R and deny Defendants' Motion to Dismiss Plaintiff's state negligence claim.

  VII. Injunctive Relief

  The R&R states, "Plaintiff has not provided any allegations in his [C]omplaint that suggests he will suffer an immediate and irreparable injury if injunctive relief is denied." R&R, p. 12. The Court adopts these findings and grants Defendants' Motion to Dismiss Plaintiff's prayer for injunctive relief.

  Injunctive relief is ". . . unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again — a "likelihood of substantial and immediate irreparable injury."" City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 502 (1974)). "The Supreme Court has repeatedly cautioned that absent a threat of immediate and irreparable harm, the federal courts should not enjoin a state to conduct its business in a particular way." Hodgers-Durgin v. De la Vina, 199 F.3d 1037, 1042 (9th Cir. 1999).

  Plaintiff requests injunctive relief to prevent Defendants "[f]rom threating [sic], punishing Plaintiff and/or his witnesses in anyway. [sic] because he has filed this action." Complaint, p. 19. However, the Complaint fails to state reasons why injunctive relief is necessary. Specifically, Plaintiff fails to demonstrate "a likelihood of substantial and immediate irreparable injury." Therefore, the Court finds that the R&R correctly concludes that Plaintiff's allegations are insufficient to show that he will suffer an immediate or irreparable injury if injunctive relief is not granted.

  Accordingly, the Court adopts the findings of the R&R and grants Defendants' Motion to Dismiss Plaintiff's prayer for injunctive relief.

  CONCLUSION & ORDER

  Having reviewed the Report and Recommendation, the Court finds that Defendants are entitled to dismissal of Plaintiff's interference with access to the courts claim and Plaintiff's prayer for injunctive relief. Additionally, the Court finds that Defendants are not entitled to dismissal of Plaintiff's First Amendment retaliation claim or negligence claim, and are not entitled to qualified immunity. Additionally, the Court finds that Plaintiff's claims for equal protection and "torts in essence" should be dismissed without prejudice as Plaintiff has moved to voluntarily dismiss those claims. Accordingly, the Court will adopt the R&R in part and modify it in part. Furthermore, the Court will grant Defendant's Motion to Dismiss in part and deny it in part.

  Accordingly,

  IT IS HEREBY ORDERED the Court ADOPTS in part and MODIFIES in part the Report and Recommendation.

  IT IS FURTHER ORDERED Defendants' Motion to Dismiss with respect to Plaintiff's First Amendment retaliation claim is DENIED.

  IT IS FURTHER ORDERED Defendants' Motion to Dismiss with respect to Plaintiff's interference with access to the courts claim is GRANTED.

  IT IS FURTHER ORDERED Defendants' Motion to Dismiss with respect to Plaintiff's equal protection claim is GRANTED without prejudice.

  IT IS FURTHER ORDERED Defendants' Motion to Dismiss with respect to Plaintiff's "torts in essence" claim is GRANTED without prejudice.

  IT IS FURTHER ORDERED Defendants' Motion to Dismiss with respect to qualified immunity is DENIED.

  IT IS FURTHER ORDERED Defendants' Motion to Dismiss with respect to Plaintiff's state negligence claim is DENIED.

  IT IS FURTHER ORDERED Defendants' Motion to Dismiss with respect to Plaintiff's prayer for injunctive relief is GRANTED.

  IT IS SO ORDERED.

20050927

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