The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (DOC. 1) OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations Following Screening of Complaint
Plaintiff Jorge Armando Diaz ("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 June 27, 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 this action. 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 a state prisoner who alleges that he is being denied his First Amendment right to petition the government for redress. On August 5, 2004, Plaintiff alleges that he was subject to an unreasonable strip search, including an x-ray examination, and was isolated for a quarantine search until August 7, 2004. On September 26, 2004, Plaintiff submitted an inmate group grievance regarding the strip search and the quarantine search. On September 28, 2004, Plaintiff's inmate grievance was denied for being untimely pursuant to Cal. Code Regs. Tit. 15 § 3084.6(c) (West 2009). Plaintiff appealed the decision, explaining that the grievance was untimely because he was waiting for supporting documents from the prison officials to attach to the initial grievance as evidence. On October 7, 2004, his appeal was denied and Plaintiff was instructed not to resubmit his grievance.
On August 7, 2006, Plaintiff filed a civil rights action in this federal court, for incidents arising from the August 5, 2004, strip search and the following quarantine search. Diaz v. Woodward, et al., No. 06-cv-01026 (E.D. Cal. filed Aug. 7, 2006). On April 27, 2007, Plaintiff's complaint was dismissed without prejudice for failing to properly exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e(a). Diaz v. Woodward, et al., No. 06-cv-01026 (E.D. Cal. April 27, 2007) (order dismissing action).
Plaintiff alleges that on August 13, 2007, he filed an inmate grievance claiming that he was being denied access to the courts by the appeals policy and procedures of the California Department of Corrections and Rehabilitation ("CDCR"). On September 20, 2007, he wrote an inquiry regarding the status of his August 13, 2007, inmate grievance, and received a response from the appeals coordinator's office on September 24, 2007, claiming no record of the grievance.
Plaintiff filed this action on July 27, 2008, alleging that the existing appeals policy of CDCR denied him his First Amendment right to petition the government for redress. Plaintiff alleges that his September 26, 2004, inmate grievance regarding the strip and the quarantine search was rejected as untimely pursuant to the existing appeals policy, thus preventing him from exhausting his administrative remedies, and consequently leading to his complaint in Diaz v. Woodward, et al., No. 06-cv-01026, being dismissed in the federal court.
B. Right to Petition the Government/Access to the Courts
Plaintiff alleges that the current CDCR appeals process denied him the right to petition the government, including access to the courts. Prisoners have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). The right is limited to direct criminal appeals, habeas petitions, and civil rights actions. Id. at 354. 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 (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) ...