The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
[Docket nos. 28, 40, 41.]
ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff, a prisoner proceeding pro se, seeks relief under 42 U.S.C. § 1983 for alleged deprivations of his Constitutional right to be free from deliberate indifference to serious medical needs, his right of access to the courts, and his Fourteenth Amendment right to due process of law. Those Defendants who had been served*fn1 moved under Fed. R. Civ. P. 12(b)(6) to dismiss the amended complaint, and requested judicial notice of certain documents in connection with state court proceedings. Pursuant to 28 U.S.C. § 636 and Civil Local Rule 72.1(d), this matter was referred to Magistrate Judge Anthony J. Battaglia.
In response to Defendants' motion to dismiss, Plaintiff filed a motion to quash, which Judge Battaglia construed as Plaintiff's opposition to the motion to dismiss. The Court construes the motion to quash in the same manner. In connection with his motion to quash, Plaintiff requested the Court take judicial notice of various records.
On February 14, 2006, Judge Battaglia issued his report and recommendation (the "R&R"), recommending Defendants' motion to dismiss be granted as to Defendants Levin, Bach, Ochoa, Madden, Janda, Scribner, and Kellerman, and Granted as to all Plaintiff's due process and denial of access to courts claims, but denied as to medical claims against Defendants Orduno and Correa. The R&R also recommended Defendants' request for judicial notice be granted as to Exhibit 3 only, and Plaintiff's request be granted as to exhibits 2, 3, 4, 7, 8, 9, 10, and 11 only.
The R&R notified the parties of their right to object, and informed them that failure to object within the time permitted might waive their appellate rights. (R&R at 22:1--4.) A district judge "may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see also 28 U.S.C. §636(b)(1). A party objecting to the recommended disposition of the matter may "serve and file specific objections to the proposed findings and recommendations," and "a party may respond to another party's objections." Rule 72(b). "[T]he court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. §636(b)(1). United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) ("The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.")
II. Objections to the R&R
The Court has reviewed the R&R and finds its recommendations to be correct, except with respect to the standard for motions to dismiss. The R&R cited the "no set of facts" standard set forth in Conley v. Gibson, 355 U.S. 41, 45--46 (1957). The Court modifies this to rely on the standard set forth in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1969 (2007). This modification does not alter the R&R's analysis, however.
Defendants filed no objections. Plaintiff made only two objections. He objected to the recommendations regarding his access to courts claim (P.'s Obj. to R&R at 3:1--4:14) and also made an unclear objection to either the grant of Defendant's request for judicial notice of Exhibit 3, or the denial of one of his requests for judicial notice, or both. (Id. at 4:24--5:14.)
A. Access to Courts Claim
The R&R cited Bounds v. Smith, 430 U.S. 817, 828 (1977) for the principle that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." The R&R correctly noted the limitations on this holding set forth in Lewis v. Casey, 518 U.S. 343 (1996), which explained the role of courts is to provide relief to claimants who have suffered, or will imminently suffer, actual harm. Lewis at 349. As the R&R correctly noted, Lewis held actual injury will exist only if "a non-frivolous legal claim had been frustrated or was being impeded." Id. at 353; see also id. at 353 n.3. As the Supreme Court has explained, Bounds did not create an abstract, freestanding right to a law library or legal assistance whose violation would be actionable. Id. at 351. Rather, a plaintiff bringing a claim under § 1983 for violation of this right must show actual injury. Id. at 351--52.
The R&R correctly pointed out that, in order to successfully state a claim for denial of access to courts, Plaintiff needed to allege a specific instance in which he was denied the tools he needed to litigate in a non-frivolous criminal trial, criminal appeal, habeas proceeding, or § 1983 case challenging the conditions of his confinement. ...