The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983. This proceeding is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
Plaintiff has submitted a second declaration in support of his application to proceed in forma pauperis, which makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff's request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.
28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Review of the complaint indicates that plaintiff appears to be challenging the failure of the California Department of Corrections and Rehabilitation and state correctional officers to timely provide plaintiff with his own legal materials which plaintiff deemed essential to represent his interests in state court proceedings. Although the complaint sets forth several dates, and recounts some chronology regarding these allegations, the court remains unclear as to the sequence of events resulting in the alleged withholding of plaintiff's legal materials, the content and intended use of these materials in state court, the purpose and outcome of each state court proceeding, and whether plaintiff ultimately obtained the subject legal materials. Plaintiff will be granted leave to file an amended complaint that clarifies these matters in light of the following legal standards.
To state a First Amendment claim for denial of access to the courts, a plaintiff must allege an actual injury. Lewis v. Casey, 518 U.S. 343, 362 (1996). The Supreme Court has held that a prisoner alleging denial of meaningful access to the courts must demonstrate that the challenged conduct hindered his efforts to pursue a potentially cognizable legal claim. Id. The prisoner must reasonably allege "that a non-frivolous legal claim had been frustrated or was being impeded." Id. Thus, before a claim of denial of access to the courts can proceed, a prisoner must demonstrate that he was precluded or thwarted in his efforts to present a legally or factually arguable claim to the courts.
However, plaintiff is informed that only an authorized, intentional deprivations of property-carried out pursuant to established state procedures, regulations, or statutes-may be actionable as an alleged due process violation. Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). Because post-deprivation remedies (e.g., pursuant to the California Tort Claims Act) are generally available for unauthorized intentional deprivations of property by state employees, such takings do not invoke constitutional safeguards. Hudson v. Palmer, 468 U.S. 517, 533 (1984).
Plaintiff is also informed that, "[u]nder Section 1983, supervisory officials are not liable for actions of subordinates on any theory of vicarious liability. A supervisor may be liable [only] if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989) (citations omitted). Plaintiff has made no factual allegations that named defendant Warden Hartley was directly involved in the challenged conduct; nor, for that matter, has plaintiff made any concrete factual allegations against the other individually named defendant, Sergeant ...