The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis. On August 25, 2010, the undersigned issued findings and recommendations recommending that this action be dismissed based on plaintiff's failure to file a second amended complaint as required by the court's July 15, 2010 order. On August 19, 2010, plaintiff presented his second amended complaint to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 270-72, 275 (1988) ("mailbox rule" that incarcerated plaintiff's pleading is deemed filed when given to prison officials for mailing). In light of the second amended complaint, the findings and recommendations will be vacated.
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 when 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 See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in, Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000); Franklin, 745 F.2d at 1227.
Plaintiff alleges various causes of action against 28 defendants. The court will first address those allegations that fail to state a cognizable civil rights claim, and will then turn to those claims for which defendants will be held to answer.
Despite this court's July 15, 2010 order, plaintiff has renewed his claims that defendants Plessas, Lockard, Keating, Dunks, Hitt, and Hass deprived him of access to the law library, prevented him from making copies necessary to prosecute court actions, tampered with his legal mail, and impeded his access to the courts. (Dkt. No. 19 at 5, ¶ 54-56, & 7-8, ¶¶ 69-73.) Plaintiff has again failed to state a cognizable claim as to his library, photocopies, tampering with legal mail, and access to the courts claim. 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 failed to allege an actual injury and, as detailed in this court's July 15, 2010 order, and confirmed in plaintiff's declaration (dkt. no. 19-1), plaintiff is unable to allege an actual injury. Therefore, plaintiff fails to state a cognizable claim under Lewis v. Casey, 518 U.S. at 351, and these claims must be dismissed.
Challenge to Disciplinary Hearings
Plaintiff alleges due process violations occurred at two different rules violation report/CDC 115 hearings, one before hearing officer Ingwerson and another before hearing officer Amero, and includes allegations against defendants Griffith, Ingwerson, Robertson, and Amero. (Dkt. No. 19 at 3, ¶¶ 33-39; at 6, ¶¶ 60-61.) Plaintiff seeks money damages only.
In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court held that a suit for damages on a civil rights claim concerning an allegedly unconstitutional conviction or imprisonment cannot be maintained absent proof "that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck, 512 U.S. at 486. Under Heck, the court is required to determine whether a judgment in plaintiff's favor in this case would necessarily invalidate his conviction or sentence. Id.
In Edwards v. Balisok, 520 U.S. 641 (1997), the United States Supreme Court extended the rule of Heck to prison disciplinary proceedings. Specifically, challenges to prison disciplinary proceedings are not cognizable under 42 U.S.C. § 1983 if "the nature of the challenge to the procedures [is] such as necessarily to imply the invalidity of the judgment." If the court concludes that the challenge would necessarily imply the invalidity of the judgment or continuing confinement, then the challenge must be brought as a petition for a writ of habeas corpus, not under § 1983.
Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997) (quoting Balisok, at 645).
This court finds that plaintiff's challenges to the disciplinary hearings implicate the validity of the disciplinary convictions. The court further finds that plaintiff has made no showing that the disciplinary convictions have been ...