FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING THE ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM THIRTY-DAY DEADLINE
Plaintiff Saadhi Coleman ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, filed this action on February 24, 2009. (Doc. 1.) On July 7, 2009, the Magistrate Judge issued an order dismissing the complaint, with leave to amend, for failure to state a claim. (Doc. 9.) On December 1, 2009, findings and recommendations were issued recommending dismissing the first amended complaint, with prejudice, for failure to state a claim. (Docs. 10, 11.) Plaintiff filed objections to the findings and recommendations on January 6, 2010. (Doc. 12.) The Court vacated the previous findings and recommendations and issued an order directing Plaintiff to file a second amended complaint on January 8, 2010. (Doc. 11.) On December 1, 2010, the third amended complaint was dismissed, with leave to amend, for failure to state a claim. (Docs. 17, 20.) Currently pending before the Court is the fourth amended complaint, filed January 11, 2011. (Doc.21.)
II. Screening Requirement
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard 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. 554, 555 (2007)).
Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "[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.'" Iqbal, 129 S. Ct. at 1949 (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. Iqbal, 129 S. Ct. at 1949. "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).
III. Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is housed at Folsom State Prison. Due to the limited access to the law library the prison uses a paging system to provide inmates with legal documents. (Doc. 21, ¶ 7.) Defendant Levario, as law librarian, is to process inmate request forms and then place the documents in the building officers tray to be forwarded to the inmate. (Id., ¶ 8.) Defendants Baker, Coelho, M. Ketz, and an unidentified correctional officer ("Doe") then deliver the documents to the inmate who placed the request and have the inmate sign to verify delivery. (Id., ¶ 9.) On November 7, 2006, Plaintiff submitted a paging system request form for copies of an opposition and exhibits. (Id., ¶¶ 12, 24.) He handed the paging system request form to Defendants Baker, Coelho, M. Ketz, and Doe for processing. (Id., ¶ 12.) Plaintiff contacted Defendants Baker, Coelho, M. Ketz, and Doe to discover the status of his request. Defendant Levario stated that the request has been processed and forwarded to Plaintiff on November 14, 2006. (Id., ¶ 17.)
Plaintiff had a deadline in state case number 04AS02826 of November 20, 2006. (Id.¶ 19.) This case was filed against the Sacramento County Main Jail and its employees for inadequate lighting. (Id., ¶ 37.) While Plaintiff was housed at the Sacramento County Main Jail, he was placed in a cell with no light. After one week Plaintiff was moved to a cell where the light was stuck in the on position, flashing non-stop. Plaintiff alleges he received a serious injury to his vision causing him to need glasses. (Id., ¶¶ 37, 38.) Due to his eye injury Plaintiff suffered three separate accidents that resulted in a deformity of his right hand. (Id., ¶ 41(1).)
On December 5, 2006, Plaintiff filed an inmate appeal. (Id., ¶ 19.) On January 17, 2007, Defendant Livario responded to Plaintiff's appeal that she assumed he had received his documents since he had been to the law library several times since he had requested them, had hundreds of copies made in December, and never mentioned that he was missing them. (Id., ¶¶ 21, 22.)
Plaintiff alleges that the documents requested were his proof that he filed a timely opposition under the prison mailbox rule. (Id., ¶ 24.) Plaintiff attempted to locate other proof that his documents were timely filed, but was unsuccessful. (Id., ¶ 36.) Plaintiff's case was ultimately dismissed as being untimely filed. (Id., ¶ 25.) Plaintiff alleges that he never received the requested documents and they were never found. (Id., ¶¶ 18, 20.)
Plaintiff brings this action naming Defendants Law Librarian S. Levario, Correctional Officers Baker, Coelho, M. Ketz, and Doe alleging denial of access to the courts. (Id., p. 1.) He is seeking $1,560,000 for the ...