The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction and no defendants have been served.
Pending before the court is plaintiff's response to the court's October 29, 2008, order to show cause why this action should not be dismissed for failure to state a claim.
Plaintiff's factual allegations are set forth in the court's order to show cause and will not be repeated here. Plaintiff names as defendants Malfi, Kelly, Young, Grannis, Lippsmeyer, Hsu, and Carroll, and asserts claims relating to two discrete events: (1) the alleged frustration of a visit from his attorney, defendant Lippsmeyer; and (2) the alleged production of confidential information from his prison files.
As to the attorney visit claim, the court stated as follows in the order to show cause:
Plaintiff claims that various defendant prison officials frustrated an attempt by his attorney, defendant Lippsmeyer, to visit him. He also claims that defendant Lippsmeyer is liable because he "acted in concert" with defendant prison officials by telling them that he never attempted to visit plaintiff. In support of his claim, plaintiff references a February 6, 2006, letter from defendant Lippsmeyer in which he states that he attempted to visit plaintiff at CSP-Sac., but was told by prison officials that he was not at that institution. Defendant Lippsmeyer's letter goes on to state that, according to the inmate locator service, plaintiff was in fact at CSP-Sac. at the time of the attempted visit. Plaintiff claims that defendant Young is responsible for attorney visits, that defendant Malfi -- the prison warden -- is responsible for allowing defendant Young to violate his rights, and that defendant Grannis -- the Chief of Inmate Appeals -- is responsible for allowing defendant Young to cover up his violation.
While prisoners generally have no right to contact visitation, see Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir. 1994), they do have a right to contact visitation with their attorneys encompassed by their right of access to the courts, see id. at 816; see also Casey v. Lewis, 4 F.3d 1516, 1523 (9th Cir. 1993). As a jurisdictional requirement flowing from the standing doctrine, the prisoner must allege an actual injury to successfully plead a claim based on denial of access to the courts. See Lewis v. Casey, 518 U.S. 343, 349 (1996). "Actual injury" is prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or present a non-frivolous claim. See id.; see also Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir. 2007). Delays in providing legal materials or assistance which result in prejudice are "not of constitutional significance" if the delay is reasonably related to legitimate penological purposes. Lewis, 518 U.S. at 362.
In this case, defendant Lippsmeyer was appointed to represent petitioner in the context of a state habeas corpus case. Therefore, plaintiff suffered no actual injury with respect to bringing contemplated litigation. In his February 2006 letter, defendant Lippsmeyer discusses the merits of plaintiff's state habeas case as follows:
While there may be some question in my mind about the constitutionality of the statutes involved, it seems to me that to get anything you want in regard to the various appeals would be to resubmit them along with this AG's response which indicates that your remedy is to resubmit new appeals. The basic claim that [the AG] seems to be making is that "He did not avail himself of his administrative remedies" dodge which is their best defense to everything in the world of bureaucracy. Unfortunately, it works in the world of habeas corpus as well, because the writ procedure is extraordinary relief. In other words, the court will not do anything for you unless the harm is clear-cut and you followed their "due process," such as it is.
From this it is clear that, to the extent plaintiff did not prevail in his state habeas case, it was because he failed to exhaust administrative remedies and not because of any frustration of his ability to visit with his attorney.
Plaintiff cannot state a claim based on frustration of a visit with his attorney because he cannot establish any actual injury as a result of the alleged frustration.
Plaintiff does not address this discussion in his response to the order to show cause. Therefore, the court will dismiss this claim from the action.
As to the claim relating to disclosure of confidential information, the court stated:
Plaintiff alleges that, on the one hand defendant Hsu issued a subpoena and De Ann Edwards wrote letters apparently confirming that confidential information was produced, but on the other hand defendant Hsu's law firm denied ever requesting confidential information and prison officials denied ever producing such information. According to plaintiff, this seeming inconsistency indicates a conspiracy among various ...