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.
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
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.
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
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).
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 ...