The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge
ORDER REQUIRING PLAINTIFF EITHER TO FILE A THIRD AMENDED COMPLAINT OR TO NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE (Doc. 21) RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Barry Louis Lamon ("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 is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at California State Prison in Corcoran, California ("CSP-Corcoran"). Plaintiff is suing under section 1983 for the violation of his rights under the First, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. Plaintiff also alleges a number of claims under state law.*fn1 Plaintiff names Derral G. Adams (warden), D. D. Sheppard-Brooks (associate warden), James D. Hartley (acting warden), R. Lopez (chief deputy warden), L. Hoogland (inmate appeals branch), Hodge-Wilkins (facility captain), Worthman (academic principle), S. Hoffman (academic vice principle), D.J. Ruiz (lieutenant), J. Martinez (sergeant), M. Mason (sergeant), Franklin (facility law librarian), Gomez (correctional officer "C/O"), J. Munoz (C/O), F. Yamat (C/O), J. Masiel (C/O), B. David (C/O), L. Mendoza (C/O), and Jane Doe (C/O) as defendants. For the reasons set forth below, Plaintiff will be given the opportunity to amend his complaint, or to proceed only on claims found to be cognizable by this order.
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 filed the original complaint in this action on September 21, 2007. Plaintiff, on his own initiative, filed a motion to amend his complaint on June 18, 2008, which was granted on June 20, 2008. (Doc. #9, 11.) Plaintiff again filed a motion to amend his complaint on February 11, 2009, which was granted on April 8, 2009. (Doc. #18, 20.) This action proceeds on Plaintiff's Second Amended Complaint filed on April 8, 2009. (Doc. #21.)
Plaintiff is an inmate involved in multiple lawsuits against prison officials. As a result of these lawsuits, Plaintiff alleges that Defendants are obstructing his access to the courts and retaliating against him. Plaintiff requested that Defendants Franklin and Gomez make copies of the "original manuscript" of a civil action, but the document was returned without copies. On May 1, 2006, Plaintiff again requested copies of the documents from Defendants Franklin and Gomez. The document was held for three weeks. During that time, Defendants Gomez, Martinez, Masiel, Mendoza and David harassed and retaliated against Plaintiff by "tainting... my meals with pain and discomfort causing chemical agents, physically beating me while I was handcuffed behind my back and intentional[ly] inflicti[ng]... mental and emotional anguish." (Compl. ¶ 45.) On May 23, 2006, Plaintiff asked Defendant Franklin to return the document. Defendant Franklin became very emotional and complained that she did not have a copy machine, or adequate funds, equipment, or staff to do her job. Defendant Franklin informed Plaintiff that she had quit her job and that if Plaintiff wanted his document back he would have to ask her replacement. Plaintiff demanded to speak with a lieutenant or sergeant regarding his document, but Defendant Franklin refused. Defendant Gomez then told Plaintiff that his library session was being terminated because he was being disruptive.
Defendants Martinez, Masiel, David, Mendoza, and Jane Doe arrived to escort Plaintiff from the library. Plaintiff was shackled and escorted back to his cell by Defendants Masiel, David, Mendoza and Jane Doe.*fn2 Defendant Masiel told Plaintiff that correctional officers were tired of Plaintiff's grievances and lawsuits and that if Plaintiff did not back off they were going to "take [him] down." (Compl. ¶ 54.) Plaintiff responded by threatening to sue them for retaliation. After they arrived at Plaintiff's cell, Defendants Masiel, David, Mendoza, and Jane Doe shoved Plaintiff into a concrete-slab bed. Defendants climbed on top of Plaintiff, shoved him face down and began to pummel him all over his body.
Plaintiff filed an inmate appeal complaining of the use of excessive force against him. Plaintiff alleges that Defendant M. Mason conducted a sham inquiry that did not include any of his inmate witnesses. Plaintiff was not informed of whether the contents of Plaintiff's appeal were found to be proven or disproven pursuant to a confidentiality policy that provides that the results of Plaintiff's staff complaint would not be disclosed to him. Plaintiff alleges that prison officials make use of the confidentiality policy to cover up the misconduct of correctional officers. The lack of a legitimate staff complaint system and punishment for correctional officers' misconduct allow correctional officers to freely violate inmates' rights, causing incidents such as Plaintiff's beating.
A. First Amendment Claims
Plaintiff alleges that Defendants interfered with his right of access to the courts. Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) (discussing the right in the context of prison grievance procedures); Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 1994); Ching v. Lewis, 895 F.2d 608, 609 (9th Cir. 1989) (per curiam). To establish a violation of the right of access to the courts, a prisoner must establish that he or she has suffered an actual injury, a jurisdictional requirement that flows from the standing doctrine and may not be waived. See Lewis, 518 U.S. at 349. An "actual injury" is "'actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or ...