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Busby v. Sacramento County Sheriff's Department

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 8, 2008

CHARLES D. BUSBY, PLAINTIFF,
v.
SACRAMENTO COUNTY SHERIFF'S DEPARTMENT, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to42 U.S.C. § 1983. Pending before the court is the amended complaint filed February 7, 2008. The only named defendant is the Sacramento County Sheriff's Department.

Plaintiff alleges that while he was incarcerated at the Sacramento County Jail, he was denied law library access. Plaintiff alleges that without law library access, he was unable to assist in his own defense.

To establish a violation of the right of meaningful access to the courts, plaintiff must show that he suffered an actual injury. Lewis v. Casey, 518 U.S. 343, 348-49, 116 S.Ct. 2174 (1996). As a criminal defendant, plaintiff has the right to retain counsel or to have counsel appointed to represent him at no cost if he is indigent. Gideon v. Wainwright, 372 U.S. 335,342-45, 83 S.Ct. 792 (1963). Appointed counsel provides plaintiff with meaningful avenues of access to the court. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981).

Plaintiff does not indicate whether he was represented by counsel in his criminal case while housed at the Sacramento County Jail. If plaintiff was represented by counsel, then his claim alleging violation of the right to access the courts as a result of inadequate law library access is without merit. Accordingly, the amended complaint is dismissed with leave to file a second amended complaint. If plaintiff was not represented by counsel during his criminal action, he may file an amended complaint to clarify this matter.

IT IS HEREBY ORDERED that the amended complaint filed February 7, 2008, is dismissed with thirty days to file a second amended complaint.

20080808

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