The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM OBJECTION DUE WITHIN THIRTY DAYS (Doc. 1)
Findings and Recommendations Following Screening of Complaint
Plaintiff Garrison S. Johnson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on January 9, 2008.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
Plaintiff is incarcerated at California Correctional Institution in Tehachapi, where the events at issue in this action occurred. Plaintiff alleges that he was housed in administrative segregation between March 17, 2007 and an unspecified date in July 2007. During that time, Plaintiff did not have access to all of his legal property. On March 21, 2007, Plaintiff notified Defendant Cannon in writing that he had legal deadlines in pending court cases but Defendant did not provide him with his legal property. On March 30, 2007, Plaintiff submitted a written request for his legal material but Defendant Cannon did not respond.
Plaintiff filed an inmate appeal on April 30, 2007, and was provided with some of his legal property by Defendant Cannon on May 16, 2007. On June 25, 2007, Plaintiff filed a staff complaint against Defendant Cannon in which he contended that Defendant was retaliating against him for filing Johnson v. California by failing to provide him with his legal material.*fn1 After Defendant Cannon was questioned on June 26, 2007, regarding Plaintiff's staff complaint, Defendant stated that he could not find all of Plaintiff's legal work. Plaintiff responded that he was entitled to have all of his legal property and if he had it, he could locate the documents and material he needed. Defendant Cannon told Plaintiff that he could look through his property when he got out of administrative segregation. After Plaintiff was released from administrative segregation in July 2007, his legal property was returned to him in full on August 30, 2007.
As a result of these events, Plaintiff alleges claims for relief under section 1983 for denial of access to the courts and retaliation.
A. Denial of Access to the Courts Claim
Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346, 116 S.Ct. 2174, 2177 (1996). The right is limited to direct criminal appeals, habeas petitions, and civil rights actions. Id. at 354, 2181-82. Claims for denial of access to the courts may arise from the frustration or hindrance of "a litigating opportunity yet to be gained" (forward-looking access claim) or from the loss of a meritorious suit that cannot now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15, 122 S.Ct. 2179, 2185-87 (2002). For backward-looking claims such as that at issue here, plaintiff "must show: 1) the loss of a 'non-frivolous' or 'arguable' underlying claim; 2) the official acts frustrating the litigation; and 3) a remedy that may be awarded as recompense but that is not otherwise available in a future suit." Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007).
The first element requires that the plaintiff show he suffered an "actual injury" by being shut out of court. Harbury 536 U.S. at 415, 121 S.Ct. at 2187; Lewis, 518 U.S. at 351, 116 S.Ct. at 2180; Phillips, 477 F.3d at 1076. The second element requires that the plaintiff show the defendant proximately caused the alleged violation of the plaintiff's rights, "[t]he touchstone . . . [for which] is foreseeability." Phillips, 477 at 1077. Finally, the third element requires that the plaintiff show he has no other remedy than the relief available via this suit for denial of access to the courts. Id. at 1078-79.
The actual injury alleged by Plaintiff is the denial of his motion for preliminary injunctive relief in case number 1:05-cv-01340-LJO-GSA PC Johnson v. Hickman on May 18, 2007. Plaintiff alleges that the Court denied his motion because he failed to demonstrate a likelihood of success on the merits or the threat of imminent irreparable harm; that Defendant's failure to provide him with his legal documents, legal books, and materials prevented him from making this showing; that the material containing instructional information on preparing motions for preliminary ...