The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER ADOPTING IN PART THE REPORT AND RECOMMENDATION; OVERRULING IN PART PLAINTIFF'S OBJECTIONS [doc. #46]; GRANTING DEFENDANTS' MOTION TO DISMISS AND REQUEST TO STRIKE PUNITIVE DAMAGES [doc. #19]; DENYING MOTIONS TO FILE SUPPLEMENTAL PLEADINGS [doc. #10, 29, 38] and DIRECTING ENTRY OF JUDGMENT
In his 42 U.S.C. §1983 amended complaint ("AC"), plaintiff Jerry Armstrong, who is proceeding without counsel, alleges his right of access to the courts has been violated. Defendants filed a motion to dismiss and a request to strike punitive damages from the amended complaint. Plaintiff filed three motions to file supplemental pleadings. These motions were referred to the assigned magistrate judge for a Report and Recommendation ("Report") under 28 U.S.C. § 363. After full briefing, Magistrate Judge Brooks filed his Report with respect to all the pending motions. Plaintiff filed timely objections to some of the recommendations.
A. Standard for Reviewing a Report and Recommendation
The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall 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 judge." Id. Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna- , 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 124 S.Ct. 238 (2003).
B. First Cause of Action: Access to Computer
Plaintiff alleges in his AC, that defendants prohibited him from accessing a computer which prevented him from filing a timely petition for certiorari before the United States Supreme Court.*fn1 Because plaintiff had not requested in forma pauperis status, he was required to meet the Supreme Court's procedural rules concerning proper formatting of documents. Plaintiff was given notice that he had 60 days in which to file a complying petition.
Once given notice of the Supreme Court's procedural requirements, plaintiff sent a letter dated March 13, 2004, to Stuart Ryan ("Ryan"), the Warden of Calipatria prison, requesting the use of a computer to comply with the Supreme Court's Rules of Court. Plaintiff's letter set forth the approximate date in which the corrected petition was required to be resubmitted; the deficiencies in the original petition, i.e., the font size and the format; and that these requirements were mandatory because he was not proceeding in forma pauperis. (Objection, Exh. D at 1.) Plaintiff contends Ryan failed to respond to his letter. Because he was not given access to a computer, he was unable to meet the formatting requirements and his petition before the Supreme Court was dismissed.
Plaintiff filed objections to the Report that found he had not exhausted this claim and that defendant Ryan had qualified immunity. The Report also recommended that the other defendants be dismissed because plaintiff failed to connect the defendants with the violation alleged. Plaintiff has not objected to the other defendants being dismissed.
The magistrate judge found plaintiff's claim based on his denial of access to a computer to be unexhausted and plaintiff acknowledges that he did not exhausted the claim. (Objection at 11.) But in his objection, plaintiff contends that the letter he sent to Ryan gave notice of his grievance sufficient to exhaust the claim, and even if the letter did not exhaust this claim, a special circumstance applies to waive the exhaustion requirement.
The Prison Litigation Reform Act ("PLRA") prohibits prisoners from filing a suit in federal court "with respect to prison conditions until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).
As noted above, plaintiff sent a single letter to Ryan requesting the use of a computer to meet the Supreme Court's procedural rules for filing a petition for certiorari. When plaintiff heard nothing in response to his letter, plaintiff took no additional action. He did not send a follow-up letter to Ryan. Nor did he file an administrative grievance directed to either Ryan's lack of response or plaintiff's need for access to a computer. (See Objection at 11, ¶ 4.) As the magistrate correctly concluded, plaintiff's first claim is unexhausted unless a special circumstance justified the failure to exhaust.
In his objection, plaintiff first relies on the district court case, Phillips v. Hust, 338 F. Supp.2d 1148 (D. Or. 2004), in support of his argument that his letter to Warden Ryan sufficiently gave notice of his grievance to demonstrate exhaustion. Plaintiff states that the "only grievance procedured [sic] employed by Phillips was an inmate communication ("a kite") that asserted some short-coming in the prison's law library system." (Objection at 13.) Plaintiff's contention is a misreading of Phillips.
In the Phillips case, plaintiff sent a kite requesting access to a comb punch binder and in response, defendant stated that the binder was unavailable to prisoners. The Phillips court did not mention or even suggest in any manner that the kite served to administratively exhaust plaintiff's claim: exhaustion was not at issue in the Phillips case. There is nothing in the Phillips case about the administrative grievance procedure employed. Thus, Armstrong's assertion that the Phillips case ...