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September 27, 2005.


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

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 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.


  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 ...

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