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 defendants' unopposed motion for summary judgment (Doc. 56).
A. Plaintiff's Allegations
This action proceeds on the amended complaint filed on November 10, 2008. Plaintiff claims that, in January 2006, correctional officer Figeroe packed all of his legal documents and personal property into a large box to be transferred with plaintiff to another prison. He states that correctional officers Figeroe and Gordon "took full control and possession of all plaintiff's legal materials...." According to plaintiff, when he arrived at the new prison, his property box was missing. Plaintiff claims that, without his legal documents, he is unable to meet court filing deadlines in a number of pending cases. He states that he cannot "file all appeal document(s) relevant to challenging the unjust conviction and unfair sentence in my criminal case on time."
Plaintiff also alleges that defendants were aware of "exonerating evidence" contained in the lost box of legal materials and, therefore, acted with malice and the intent of denying plaintiff access to the courts. As to the "exonerating evidence," plaintiff states this consisted of a declaration from an individual known as "Keybo" which was obtained on plaintiff's behalf by a family member. According to plaintiff, "Keybo" stated that he was a witness to the incident giving rise to plaintiff's conviction and that he was prepared to declare that plaintiff was not the perpetrator. Plaintiff states that, as a result of the loss of the declaration from "Keybo," he was prevented from submitting an amended habeas petition in the state court and thereby pursuing a non-frivolous claim of actual innocence. Plaintiff further claims that "[d]ue to the fact that Keybo is in transit, plaintiff have been informed by his family member that they are unable to locate Keybo a second time."
On January 15, 2009, the court determined that the amended complaint stated a cognizable claim for relief and directed defendants to respond.
Defendants submit evidence establishing the following undisputed facts:
1. Plaintiff was transferred from High Desert State Prison to Pleasant Valley State Prison on February 1, 2006;
2. On January 31, 2006, plaintiff brought his legal materials to Building 2 at High Desert State Prison where he observed defendant Figeroe and another unknown correction officer place his materials into a box, then label and seal the box;
3. Plaintiff then observed defendant Figeroe place the box on a cart with those of other inmates being transferred that day;
4. Plaintiff then observed defendant Gordon wheel the cart out of Building 2;
5. Plaintiff was taken to the Receiving and Release area on February 1, 2006, to ...