The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AN AMENDED COMPLAINT OR NOTIFY THE COURT THAT HE IS WILLING TO PROCEED ONLY AGAINST ROSS AND KANE THIRTY DAY DEADLINE (Doc. 1)
This is a civil action filed by plaintiff Emelito Exmundo ("Plaintiff"), a state prisoner proceeding pro. The action was removed from the Fresno County Superior Court to this Court by defendants Kane and Ross ("Defendants") on June 12, 2008.
Plaintiff is currently housed at Pleasant Valley State Prison, where the events giving rise to this action allegedly occurred. Plaintiff names Licensed Vocational Nurse R. Kane, Licensed Vocational Nurse A. Ross and Dr. K. Vilaysane as defendants.
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).
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)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.
II. Summary of Plaintiff's Complaint
A. Defendants Kane and Ross
Plaintiff alleges that on March 21, 2007 defendant Kane issued a Rules Violation Report falsely stating that Plaintiff was "cheeking" his medication. Plaintiff alleges that as a result of the report, the doctor discontinued Plaintiff's medication and that defendant Kane refused to give Plaintiff his medication on May 24, 2007. Plaintiff alleges that defendant acted in retaliation for Plaintiff initiating a lawsuit against her. Plaintiff alleges that defendant Kane also refused to give Plaintiff his medication on January 26, 2008, purportedly for having failed to comply with rules. However, Plaintiff alleges that defendant's conduct was retaliatory.
With respect to defendant Ross, Plaintiff alleges that in November 2007 defendant Ross issued a Rules Violation Report falsely stating that Plaintiff was cheeking his medication. Plaintiff alleges that defendant Ross knew that such an accusation would result in the discontinuation of Plaintiff's medication. Plaintiff states that defendant Ross' actions were taken in retaliation for Plaintiff filing a 602/1824 grievance against Correctional Officer Mendoza, as well as for Plaintiff's intent to pursue legal action against defendant Ross. Plaintiff further alleges that defendant Ross accused Plaintiff of disrespect that resulted in a punishment of 96 hours of confinement-to-quarters.
Plaintiff alleges that defendants Ross and Kane violated his right to access to the courts, as well as his right to be free from cruel and unusual punishment.
i. Access to the Courts and Retaliation
Plaintiff alleges that defendants retaliatory conduct denied him access to the courts. 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). To prevail on a claim, the plaintiff must show that he suffered an actual injury by being shut out of court. Id. at 415, 2187; Lewis, 518 U.S. at 351, 2180.
Plaintiff's allegations state a cognizable claim against defendants Kane and Ross for retaliation in violation of the First Amendment. However, Plaintiff's allegations do not support a claim for denial of access to the courts against either defendant. Plaintiff has failed to show that he suffered an actual injury. Id. Further, Plaintiff has not alleged that he was ...