The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED
Plaintiff, a state prisoner proceeding pro se, filed a lawsuit under 42 U.S.C. § 1983 on July 26, 2006. The court dismissed his initial complaint on November 16, 2007. (Doc. no. 34.) Pursuant to the order of dismissal, the first amended complaint ("FAC") names one defendant: Dee Stone, an employee of the California Department of Corrections and Rehabilitation at Calipatria State Prison ("Calipatria"). Defendant now moves to dismiss Plaintiff's FAC and to strike portions thereof. Plaintiff opposes the motion and Defendant filed a reply to the opposition.
On April 28, 2008, Magistrate Judge Cathy Ann Bencivengo issued a Report and Recommendation ("R&R") recommending that the court grant Defendants' motion in an order taking the following action: (1) granting the motion to dismiss Claims One, Four, and Five with prejudice; (2) denying the motion to dismiss Claims Two and Three; (3) denying the motion to dismiss the FAC due to qualified immunity; (4) denying the motion to strike the request for punitive damages; and (5) dismiss the claim for injunctive relief. (R&R at 11-12.) Both Plaintiff and Defendant filed objections.
For the reasons set forth below, the court hereby ADOPTS the R&R AS MODIFIED herein.
Plaintiff's § 1983 action arises out of events that occurred during his incarceration at Calipatria. He claims to have suffered retaliation following several incidents in which defendant Stone denied him access to Calipatria's law library. Specifically, he alleges the following constitutional claims: (1) Defendant violated his First Amendment rights by retaliating against him for filing administrative complaints against her; and (2) Defendant violated his Fourteenth Amendment rights by denying him access to the courts. Plaintiff seeks compensatory and punitive damages. He also seeks "injunctive relief, including, but not limited to, an order requiring defendant Stone not be able to work as the interim library technical assistant, so as to not be subjected to retaliation instigated and/or ratified by defendant Stone." (FAC at 12.)
The R&R provides a thorough and clear statement of the facts (see R&R at 2-3) and the court hereby incorporates them by reference in this order.
The court reviews a magistrate judge's R&R according to the standards set forth in Federal Rules of Civil Procedure ("FRCP") Rule 72(b) and 28 U.S.C. § 636. The court "shall make a de novo determination of those portions of the report . . . to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 673-74 (1980).
B. Rule 12(b)(6) Motion to Dismiss
The R&R recommends that the court grant in part and deny in part the motion to dismiss. Specifically, the R&R concludes that (1) Claims One and Four fail to state a First Amendment retaliation claim; (2) Claims Two and Three state a viable retaliation claim; and (3) Claim Five fails to state a Fourteenth Amendment claim for denial of access to the courts.
Having considered the R&R and the applicable authorities, the court hereby adopts the R&R's analysis and recommendation regarding the 12(b)(6) motion to ...