The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND FOR FAILURE TO STATE ANY FEDERAL CLAIMS (Doc. 1) RESPONSE DUE WITHIN 30 DAYS
Plaintiff James Thomas Tomala ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint that initiated this action on September 2, 2009, in the Sacramento Division of the Eastern District of California. The case was transferred to the Fresno Division on September 10, 2009.
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 (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 conclusions are not. Id. at 1949.
Plaintiff is currently incarcerated at the Sierra Conservation Center ("SCC") in Jamestown, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: correctional lieutenant Troy Davis, appeals coordinator W. Semsen, secretary of CDCR Mathew Cate, warden Ivan D. Clay, and chief of inmate appeals N. Grannis. Plaintiff alleges the following.
Plaintiff received a CDC-128B Informational Chrono dated October 20, 2008, written by Defendant Davis. Defendant Davis wrote that Plaintiff was involved in a homosexual relationship with his cellmate, and recommending separation of the two inmates to prevent further occurrences of the behavior. Plaintiff however was not at the SCC, but was rather in the administrative segregation unit for an unrelated matter. Defendant Davis then re-wrote the chrono. Plaintiff filed a grievance against Defendant Davis. (Pl.'s Compl. 3-5.)
Plaintiff contends a violation of Plaintiff's First Amendment right to petition the government for redress of grievances, due process, defamation of character, respondeat superior liability, and intentional infliction of emotional distress. Plaintiff seeks monetary damages.
A. Redress Of Grievances/Access To The Courts
Plaintiff contends that Defendant Semsen returned Plaintiff's grievance against Davis. Defendant Semsen allegedly refused to process the complaint as misconduct against a peace officer. Plaintiff contends that he appealed this decision, and Defendant Clay through his agent Chief Deputy Warden F. X. Chavez denied treating the complaint as a staff complaint. Plaintiff appealed this decision to the Director Matthew Cate. Defendant Grannis on behalf of the Director refused to process the complaint as a staff complaint. (Pl.'s Compl. 5-6.)
Inmates have a fundamental 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; ...