The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is the motion to dismiss (Doc. 20) brought by defendants Kelly, Grannis, and Carroll. Also pending before the court is plaintiff's motion for injunctive relief (Doc. 22).
A. Plaintiff's Allegations
This action proceeds on plaintiff's amended complaint (Doc. 18). Plaintiff names the following as defendants: Malfi, Kelly, Young, Grannis, Lippsmeyer, Hsu, Carroll, and the law firm of Lawrence, Beach, Allen, and Choi.*fn1 Plaintiff states that, upon arriving at California State Prison -- Sacramento ("CSP-Sac.")*fn2 in December 2004, he "began having extreme difficulties with filing administrative inmate appeals. . . ." Specifically, plaintiff asserts that defendant Malfi, the prison warden, permitted subordinates to "deliberately frustrate plaintiff's appeal efforts in order to cover up misconduct by prison . . . officials." Plaintiff states that, in early 2005, he filed a habeas corpus petition in the Sacramento County Superior Court regarding this claim.*fn3
According to plaintiff, the state court granted his motion for appointment of counsel in December 2005 and defendant Lippsmeyer was appointed. Plaintiff contends, however, that defendant Lippsmeyer did nothing to litigate his case and only learned from counsel in February 2006 that prison officials had erroneously told Lippsmeyer when he attempted to visit plaintiff that plaintiff had been moved to a different prison. Plaintiff claims that defendants Malfi and Young are liable for "deliberately permitting subordinates to falsely convey to Defendant Lippsmeyer that Plaintiff was 'not at the prison' for attorney visit." According to plaintiff, defendant Young is responsible for attorney visits and, for this reason, "knew before hand that Defendant Lippsmeyer was planning to visit Plaintiff in regards to the petition filed against [CSP-Sac.] officials, and deliberately denied Plaintiff's right to counsel with malicious intent."
Plaintiff states that, in February 2006, he filed an inmate grievance regarding his inability to see Lippsmeyer. He states that, in response, defendant Young generated a memorandum "through subordinates purporting that Defendant Lippsmeyer was contacted and denied ever making an attempt to visit with Plaintiff . . . or scheduling such." Plaintiff attaches a February 6, 2006, letter from defendant Lippsmeyer regarding his efforts to see plaintiff, which plaintiff states proves defendant Young's "utter fabrication." Plaintiff adds that defendants Malfi and Grannis, who is the Chief of Inmate Appeals in Sacramento, "then failed to perform duties legally required by failing to correct Defendant Young's unconstitutional impositions, and by permitting Defendant Young to use dishonesty and fabrications during administrative investigations to cover up the deliberate denial of Plaintiff's right to counsel."
Plaintiff continues by alleging that he filed a complaint with the State Bar of California "after finding out that Defendant Lippsmeyer acted in concert with Defendants Malfi and Young. . . ." Plaintiff attaches to his complaint a June 22, 2006, letter from the state bar closing plaintiff's complaint. That letter states:
We have received your complaint, on 5/15/06, against Jon Paul Lippsmeyer. Your allegations may be grounds for a criminal appeal or a civil claim for damages but they do not form the basis for discipline. . . . Plaintiff then alleges that defendant Hsu, an attorney, served a civil subpoena on officials at CSP-Sac. requesting "any and all non-privileged and non-confidential parole and/or incarceration records" relating to plaintiff. It appears that defendant Hsu represented the County of Los Angeles in a civil rights case pending in the Central District of California. Plaintiff alleges that, in response to this subpoena, defendants Kelly and Carroll produced records relating to plaintiff's disciplinary history as well as plaintiff's confidential medical file. Plaintiff states that he filed a grievance concerning this situation on July 27, 2006, but that "each level of review and investigation were obstructed, ignored, and denied by conduct known as the code of silence, which operates to conceal wrongdoings." Specifically, plaintiff alleges that defendant Carroll admitted in the first level appeal response that he provided defendant Hsu with plaintiff's confidential records but that, defendant Young's second level appeal response stated that there was no record of prison officials ever receiving a subpoena and that defendant Hsu's law office confirmed that no subpoena was ever sent. Plaintiff asserts defendant Malfi and Grannis "permitted Defendant Young to act with dishonesty and deliberately fabricate Defendants Young, Kelly, and Carroll did not release Plaintiff's confidential medical and mental health records to Defendant Hsu, while Defendant Hsu acted in concert by participating in Defendants' affirmative act. . . ." Based on plaintiff's factual assertions and the documents attached to the complaint, plaintiff is complaining about two discreet events: (1) the alleged frustration of a visit from his attorney; and (2) the alleged production of confidential information from his prison files.
The court previously concluded that plaintiff's complaint does not state a cognizable claim with respect to attorney visits. As to this claim, the court stated:
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 [sic] 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 ...