The opinion of the court was delivered by: Hayes, Judge
The matters pending before the Court are: (1) Defendants' Motion to Dismiss Plaintiff's Complaint and to Strike (Doc. #12); (2) the review of the Report and Recommendations of the United States Magistrate Judge filed on January 10, 2007 (Doc. #34); and (3) Plaintiff's application for an order enjoining prison officials (Doc. #35).
On September 28, 2005, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 alleging that the actions of the Defendants deprived him of his right of access to the courts. (Complaint at 3). Plaintiff sued all Defendants as an individual and in his official capacity. (Complaint at 2).
Plaintiff alleges in the Complaint that he is incarcerated at R. J. Donovan Correctional Facility; that he presented his Petition for Review, exhibits, and a complaint to Defendant Laguna for photocopying on March 4, 2005; and that Defendant Laguna denied him the photocopies. The Complaint alleges that the law library clerk informed Plaintiff that the copy machine was broken and the library could only photocopy documents for inmates with verifiable court deadlines; that he needed the copies immediately for a March 6, 2005 filing deadline for his Petition for Review to the California Supreme Court; and that Defendant Laguna already knew of this filing deadline. The Complaint alleges that Defendant Laguna was present on February 22, 2005 when Plaintiff discussed the filing deadline with the senior librarian and that Plaintiff reminded Defendant Laguna of the filing deadline after Laguna denied the photocopies. The Complaint alleges that Defendant Laguna insisted that Plaintiff did not have an impending deadline and denied Plaintiff the photocopies. (Complaint at 3).
The Complaint alleges that Plaintiff served a CDC602 on Defendant Seibel on March 5, 2005, requesting emergency photocopies and that Defendant Seibel requested Plaintiff's court order so as to verify the emergency. (Complaint at 3). The Complaint alleges that Plaintiff returned to his cell to retrieve his papers, but was required to stay in his cell due to a "modified program" and could not present the court order to Defendant Seibel. (Complaint at 3-4). The Complaint alleges that Defendants Clardy, Melvin, and Armoskos also contributed to the circumstances by not adequately resolving Plaintiff's grievance. (Complaint at 4). The Complaint alleges that without the requisite photocopies, Plaintiff could not meet the March 6, 2005 filing deadline set for his Petition for Review; that he filed a Motion Seeking Permission to File a Late Petition; and that on March 25, 2005 the California Supreme Court denied this motion. (Complaint at 4).*fn1
On April 7, 2006, Defendants filed a Motion to Dismiss the Complaint and a Motion to Strike pursuant to Federal Rules of Civil Procedure 12(b) and 12(b)(6). Defendants contend that the Court should dismiss Plaintiff's Complaint on the grounds that (1) all named Defendants are entitled to sovereign immunity when sued in their official capacity, (2) Plaintiff failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a), (3) the Complaint failed to state a claim upon which relief can be granted, and (4) Plaintiff cannot establish that he suffered any actual injury as a result of Defendants' conduct.
On June 1, 2006, Defendants filed a Request for Judicial Notice of a conformed copy of the April 13, 2005 ruling of the California Supreme Court in S131852 denying Plaintiff's Petition for Review without prejudice along with a Supplemental Brief in support of Defendants' Motion to Dismiss. Defendants asserted that the ruling of the California Supreme Court in S131852 clearly shows that Plaintiff's Petition for Review was denied on the merits and without prejudice and that Plaintiff can show no injury to his ability to pursue his remedies in the state court. (Doc # 18).
On June 13, 2006, the Court granted Plaintiff's Emergency Motion for Extension of Time and allowed Plaintiff to file a late Opposition to Defendant's Motion to Dismiss. (Doc. #21).
On July 31, 2006, Plaintiff filed an Opposition to Defendants' Motion to Dismiss the Complaint, asserting that (1) he need not submit evidence and affidavits in support of his Complaint, (2) Defendant Laguna knew of Plaintiff's March 6, 2005 filing deadline for his Petition for Review and intentionally denied Plaintiff the necessary photocopies, and (3) he exhausted his administrative remedies prior to filing the Complaint. (Doc. # 27).
On August 8, 2006 Defendants filed a Reply to Plaintiff's Opposition to the Motion To Dismiss the Complaint asserting that Plaintiff cannot use an inmate appeal which pre-dated the alleged injury to satisfy the exhaustion requirement, and that Plaintiff cannot add new allegations to his original Complaint through his opposition brief. (Doc. # 29).
On January 10, 2007, the Magistrate Judge filed a Report and Recommendation recommending that Defendants' Motion to Dismiss and to Strike should be granted in part and denied in part. The Report and Recommendation concluded that 1) Defendants were not entitled to dismissal in their official capacity on the grounds of sovereign immunity; 2) Defendants did not provide sufficient proof that administrative relief remained available; and 3) Plaintiff adequately alleged a denial of access claim against Defendants Laguna and Seibel but not against Defendants Clardy, Armoskos, and Melvin.
The Report and Recommendation found that there was evidence in the record of two inmate appeals filed by the Plaintiff: 1) inmate appeal RJD 04-1037 and 2) inmate appeal RJD 05-465. The Report and Recommendation concluded that inmate appeal RJD 04-1037 cannot satisfy the statutory requirement that Plaintiff exhaust his administrative appeal rights prior to filing an action under § 1983 because inmate appeal RJD 04-1037 was filed prior to the actions which are the subject of the Complaint, describe events that are unrelated to the issues raised in the Complaint, and involve different parties unrelated to the actions raised in the Complaint. The Report and Recommendation further concluded that the record was not sufficient to determine whether Plaintiff exhausted his administrative appeal rights in inmate appeal RJD 05-465 prior to filing this action under § 1983 because the evidence provided in the record did not explain the partial grant at the First Formal Level of Review. (Doc. # 34 at 26-31).
On January 31, 2007, Defendants filed Objections to the Report and Recommendation asserting: 1) the conclusion that Defendants may be sued in their official capacity is an erroneous application of law; 2) Plaintiff has failed to exhaust his administrative remedies; and 3) Plaintiff cannot state a cognizable claim for a violation of his rights of access to the courts in his criminal appeal because Plaintiff was represented by counsel in the state court proceeding. Defendants move this Court to exercise its discretion to accept additional evidence regarding the partial grant at the First Formal Level of Review. Defendants attached to the Declaration of Robert Codd, Litigation Coordinator at the prison, the following four exhibits: (1) Plaintiff's CDCR-602 inmate appeal no. RJD-05-465 (Exhibit A); (2) the first level response to Plaintiff's CDCR-602 inmate appeal no. RJD-05-465 (Exhibit B); (3) Plaintiff's second level appeal to his CDCR-602 inmate appeal no. RJD-05-465 (Exhibit C); and (4) the second level response to Plaintiff's CDCR-602 inmate appeal no. RJD-05-465 (Exhibit D). Defendants contend that these documents conclusively demonstrate that additional administrative relief was available to Plaintiff at the time that he failed to complete the appeal process.
On January 31, 2007, Defendants further filed a Request for Judicial Notice in support of the Objections to the Report and Recommendation. Defendants request that the Court take judicial notice of the Petition for Review to Exhaust State Remedies filed by Plaintiff's appointed counsel in the Supreme Court State of California on February 28, 2005. Defendants assert that this Petition contests the sentence Plaintiff received in his underlying criminal case and conclusively demonstrates that Plaintiff was represented by counsel at the time that Plaintiff claims denial of access to the courts in this case.
On February 2, 2007, this Court filed an order stating in part: "[t]he newly-submitted evidence attached to Defendants' Objections to Report and Recommendation concerns Defendants' affirmative defense that Plaintiff failed to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a). Because exhaustion is mandatory under § 1997e(a), see Porter v. Nussle, 534 U.S. 516, 524 (2002), the Court GRANTS Defendants' request that the Court consider its newly-submitted evidence attached to the Objections to Report and Recommendation. See U.S. v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000) ("[A] district court has discretion ... to consider evidence presented for the first time in a party's objection to a magistrate judge's recommendation."). The Court will consider the newly-submitted evidence. Plaintiff is ORDERED to file any response to the newly-submitted evidence on or before March 2, 2007. In addition, Plaintiff may file any objections to the Report and Recommendation no later than March 2, 2007. Any reply to Plaintiff's responses or objections must be filed no later than March 12, 2007." (Docket #37).
On February 6, 2007, this Court filed the following "Notice to Plaintiff": This notice is given pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999) and Wyatt v. Terhune, 315 F.3d 1108,1120 n.14 (9th Cir. 2003).
Defendants have moved for the dismissal of Plaintiff's Complaint for multiple reasons, including because Plaintiff allegedly failed to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a). In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the Court may look beyond the pleadings and decide disputed issues of fact. If the Court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. See Wyatt v. Terhune, 315 F.3d at 1120. This notice is intended to provide Plaintiff with fair notice of his opportunity to develop a record. Plaintiff shall file any response to Defendant's motion to dismiss including any specific facts in declarations or authenticated documents no later than March 2, 2007. Defendant shall file any reply no later than March 12, 2007. The Court will rule thereafter. (Doc. # 38).
On February 8, 2007, this Court filed an order granting Plaintiff's motion for extension of time to March 2, 2007 to file any response to Defendants' newly-submitted evidence or any ...