ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. Defendants Caro, Lockhart and Campbell have filed motions to dismiss for failure to state a claim and to strike plaintiff's prayer for punitive damages. Plaintiff has opposed the motions.
Plaintiff has also filed a request that the court direct service on defendants Reyes, Farmer and Sullivan.
In his first amended complaint, plaintiff alleges that on March 30, 2005, defendant Caro took plaintiff's property for inventory before plaintiff was put in administrative segregation and told plaintiff that he had confiscated some alleged pornography and string. When plaintiff was released from segregation, he realized that some of his property was missing and had not been included on the inventory form. Amended Complaint (Am. Compl.) ¶¶ 20-21. The missing property included some crime scene photographs; although some of the photographs were returned to plaintiff, twenty-nine have not been recovered. Id. ¶ 23. There are no duplicates of the missing photographs. Id. ¶ 24. Plaintiff had hired a forensic laboratory to review materials relating to his criminal conviction, including the missing photographs. Id. Defendant Campbell, the Warden, knew or should have known that his property was not properly inventoried. Id. ¶ 9.
In July 2005, someone attached a threatening note to a grievance plaintiff had filed and a counseling chrono was issued against plaintiff. Id. ¶¶ 25-26. Plaintiff asked that all references to the note, which he says he did not write, be expunged from his central file. Defendant Campbell assigned defendant Lockhart to investigate the matter; defendant Lockhart concluded that plaintiff could have been the author. Id. ¶ 28. Plaintiff was denied parole in February 2006 and his next hearing is set in five years. Id. ¶ 29.
Plaintiff alleges a violation of his First Amendment right of access to the courts, the California tort of conversion, and violation of his right to due process.
I. Standards For Motion To Dismiss Under Fed. R. Civ. P. 12(b)(6)
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, U.S., 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, U.S., 127 S.Ct. 1955, 1965 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson, 127 S.Ct. at 2200 (internal quotations omitted). A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that plaintiff can prove no set of facts in support of the claim that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
II. Denial Of Access To The Courts
Defendants argue plaintiff has not alleged that he suffered any actual injury as the result of the confiscation of his crime scene photographs and so has not adequately pled a claim of denial of access to the courts. Mot. to Dismiss (MTD) (Docket No. 20) at 5-6.
Plaintiff says he is seeking an injunction "to improve said access or to require said access" and so need not plead actual injury. Opposition to Motion to Dismiss (Opp'n) (Docket No. 25) at 2. He also argues that a delay in the ability to pursue his claims is a sufficient allegation of injury.
An inmate has a constitutionally protected right of meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 820-21 (1977). However, "[v]arious resources, documents, and supplies merely provide the instruments for reasonable access, and are not protected in and of themselves." Ortloff v. United States, 335 F.3d 652, 656 (7th Cir. 2003).*fn1
A prisoner cannot make conclusory declarations of injury, but instead must demonstrate that a non-frivolous legal claim has been frustrated or impeded. To establish actual injury an inmate "might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement . . . [o]r that he suffered arguably actionable harm that he wished to bring before the courts, but was so stymied . . . that he was unable even to file a complaint." Lewis v. Casey, 518 U.S. 343, 351 (1996). If the underlying action is frivolous, a plaintiff cannot make the necessary showing of actual injury. See Christopher v. Harbury, 536 U.S. 403, 415 (2002).
Plaintiff relies on three cases to argue that he need not demonstrate actual injury because he is seeking injunctive relief. He glosses over the fact that he is also seeking damages for the confiscation of his crime scene photographs, including a request to be reimbursed for the costs of counsel and the forensic expert he hired to evaluate the evidence, and the possibility of pursuing a habeas petition, as well as punitive damages. Am. ...