The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS
OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff George Aaron, Jr. ("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 was incarcerated at Corcoran State Prison ("CSP") at the time of the events described below. Plaintiff is suing under Section 1983 for the violation of his rights under the First and Eighth Amendments. Plaintiff names S. Cano, I. Bueno, and L. Cano as defendants. For the reasons set forth below, the Court will recommend that Plaintiff's access-to-courts claims and Eighth Amendment claims be dismissed without leave to amend.
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).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
Plaintiff filed the original complaint in this action on May 5, 2008. (Doc. 1.) Plaintiff requested leave to file his First Amended Complaint on February 3, 2009, before the court had screened his original complaint. (Doc. 10.) Plaintiff's motion was granted on February 10, 2009. (Doc. 11.) Plaintiff filed his First Amended Complaint on March 13, 2009. (Doc. 12.) On May 8, 2009, the court screened the complaint and ordered Plaintiff to file an amended complaint or provide notice of his willingness to proceed on those claims found to be cognizable. (Doc. 13.) On May 20, 2009, Plaintiff provided notice to the court of his willingness to proceed on his cognizable claims.
However, on June 16, 2009, Plaintiff filed objections to the court's Findings and Recommendations pertaining to his non-cognizable claims. (Doc. 21.) As a result, the court ordered Plaintiff to file a response indicating whether he intended to file an amended complaint or proceed on those claims found to be cognizable in his First Amended Complaint. (Doc. 22.) On September 28, 2009, Plaintiff filed a document titled: Request to Supplement the Complaint. (Doc. 24.) On October 9, 2009, the court granted Plaintiff leave to file an amended complaint. (Doc. 25.) Plaintiff filed his Second Amended Complaint on October 21, 2009.*fn1 (Doc. 26.) This action proceeds on Plaintiff's Second Amended Complaint.
Plaintiff was an inmate at CSP. On January 25, 2005, Plaintiff filed a separate Section 1983 action alleging deliberate indifference to medical needs. In that action, Plaintiff identified two potential witnesses should the case move to trial. These witnesses were apparently inmates at separate penal institutions. On June 16, 2007, Plaintiff submitted Request for Correspondence forms to Defendant S. Cano who denied Plaintiff's request. Plaintiff then filed an administrative appeal. On June 26, 2007, Defendant L. Cano returned the appeal to Plaintiff, with directions to seek an informal appeal, provide supporting documents, and resubmit his appeal to Defendant S. Cano.
Plaintiff maintains that he followed Defendant L. Cano's instructions but that the attachments disappeared and he could not obtain a reply from Defendant S. Cano. Subsequently, Plaintiff filed a staff complaint, alleging obstruction of Plaintiff's previous litigation. Plaintiff argues that Defendant L. Cano, again, rejected the appeal and deprived Plaintiff of an administrative remedy. Plaintiff noted that Defendant S. Cano was replaced by Defendant Bueno as his correctional counselor at this time. On August 14, 2007, Plaintiff maintains that he submitted another request for correspondence to ...