The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed March 29, 2010, plaintiff's complaint was dismissed with leave to file an amended complaint. After receiving an extension of time, plaintiff has now filed an amended complaint.
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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
Plaintiff's original complaint was 119 pages long (35 page complaint and 84 pages of exhibits) and sued 31 defendants for various alleged constitutional violations. Plaintiff's ten page amended complaint, by comparison, is much improved. He now alleges various causes of action against 28 defendants. Plaintiff alleges that, inter alia, defendants deprived him of access to the law library, to make copies necessary to prosecute court actions, tampered with his legal mail, and impeded his access to the courts; defendants were deliberately indifferent to his safety, subjected him to cruel and unusual punishment, violated his right to equal protection, and denied him the right to receive necessary medical treatment. Plaintiff also presses three state law claims.
However, plaintiff has failed to state a cognizable Eighth Amendment claim as to his library, photocopies, tampering with legal mail, and access to the courts claims. In Lewis v. Casey, 518 U.S. 343 (1996), the United States Supreme Court held that prison inmates have a constitutionally protected right to access the courts to bring civil rights actions to challenge their conditions of confinement and to bring challenges to their criminal convictions. Lewis v. Casey, 518 U.S. at 351. The right of access to the courts "guarantees no particular methodology but rather the conferral of a capability -- the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts." Id. at 356. To state a cognizable claim for relief based on interference with access to the courts, plaintiff must allege facts which, if proved, will show that defendants by their acts prevented him from bringing, or caused him to lose, an actionable claim of this type. Id.
Plaintiff has included no allegations concerning the impact, if any, of his claims that defendants kept him from making photocopies or accessing the law library. Moreover, plaintiff has filed numerous cases in this district in the past few years.*fn1
06-2732 FCD CMK Jones v. Stieferman (pending) 08-0096 FCD EFB Jones v. Betti (pending) 08-0251 DAE KSC Jones v. Vanderville (closed 12/01/2009) 08-2607 MCE KJM Jones v. DeForest (pending) 09-0150 JLQ Jones v. Bishop (pending) 09-0619 GEB EFB Jones v. Swingle (pending) 09-2133 FCD KJN Jones v. Plessas (pending) 09-3092 WBS EFB Jones v. Felker (pending) 09-3174 FCD KJM Jones v. David (pending) 09-3218 LKK CMK Jones v. Burgett (closed 5/7/2010) 10-1169 EFB Jones v. Farley (pending) 10-1381 KJN Jones v. Prater (pending)
Neither the 2006 case nor any of the cases filed in 2008 were closed based on plaintiff's failure to file a complaint or amended complaint.*fn2 Because of the status of plaintiff's 2008 cases, as well as the number of cases filed by plaintiff in the last few years, it is unlikely plaintiff can demonstrate he was prevented from bringing a lawsuit in 2008. Thus, these claims are not cognizable, and should not be included in any second amended complaint.
The amended complaint contains no charging allegations as to the denial of medical care.
Plaintiff is advised that allegations of harassment, embarrassment, threats or defamation are not cognizable under § 1983. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Plaintiff's allegations of verbal abuse fail to state a cognizable § 1983 claim.
Finally, plaintiff has utterly failed to address the issue of exhaustion of remedies in his amended complaint. The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding the conditions of their confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.
Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner "seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money." Id. at 734.*fn3
A prisoner need not exhaust further levels of review once he has either received all the remedies that are "available" at an intermediate level of review, or has been reliably informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at ...