The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), filed on September 23, 2010, to which plaintiff filed an opposition, after which defendants filed a reply.
Although file-stamped September 14, 2009, by application of the mailbox rule, this action was originally filed on August 27, 2009.*fn1 Following dismissal with leave to amend, plaintiff filed his first amended complaint on January 15, 2010, and this action proceeds against defendants R.K. Wong; D.K. Downs; Uriel Gamboa; Daniel Romero; Dan Hunter; M. Muniz; Danna; C.A. Collins; N.Grannis; T. Kots; T. Robertson; Matthew Cate. Amended Complaint (AC), pp. 3-5. Eight of the twelve defendants, Warden Wong; Associate Warden Downs; Correctional Officer (C/O) Gamboa; C/O Romero; C/O Hunter; C/O Muniz; Correctional Sergeant Danna; and Appeals Coordinator Collins, were employed at California State Prison-Lancaster (CSP-LAC). Id., at 3-4. Defendant Grannis was Chief of Inmate Appeals; defendants Kots and Robertson are employed at High Desert State Prison (HDSP). Id., at 4-5. Defendant Cate is Secretary of the California Department of Corrections and Rehabilitation (CDCR). Id., at 5.
Plaintiff sets forth a long and torturous route by which he claims to have been wrongfully deprived of his legal property by CSP-Lac officials but which he has been unable to rectify through his transfers to Pleasant Valley State Prison (PVSP) to California Correctional Institution (CCI) in Tehachapi or to High Desert State Prison (HDSP). Plaintiff, currently housed at HDSP, is serving a 220-year-to-life sentence. AC, p. 3. On December 19, 2005, defendant Correctional (Floor) Officer (C/O) Hunter advised plaintiff and his cellmate at CSP-Lac that they were being moved to administrative segregation (ad seg) for reasons involving an investigation. AC, pp. 5-6. Defendant Hunter ordered plaintiff and his cellmate to pack their legal materials separately from other personal property, which each did. Id., at 6.
When plaintiff was being escorted to ad-seg, he was ordered to only bring his legal material; plaintiff attempted to take two large plastic trash bags containing transcript volumes, crime scene photos, police reports, legal research and other legal material he was planning to make use of in two petitions for writs of habeas corpus in federal court: SA-cv-06-310-AHS and SA-cv-06-768-AHS. AC, pp. 6-7. The federal district court for the Central District of California ultimately dismissed both of plaintiff's federal habeas petitions with prejudice. AC, p. 6-7 & Exhibits (Exs.) at pp. 72 & 75. SA-cv-06-310-AHS was dismissed with prejudice on April 23, 2007, and SA-cv-06-768-AHS was dismissed with prejudice on March 20, 2008.
Once defendant Hunter saw how much legal material plaintiff was attempting to transport, he told plaintiff that he could not take all of the legal material because plaintiff would be handcuffed behind his back and would not be able to carry it. AC, p. 7. Plaintiff asked to use a nearby empty laundry cart, often used for moving inmate property, but was refused by defendant Hunter who stated that he did not wish to push the cart all the way there and back again. Id. After his transfer to ad seg, plaintiff on December 19, 2005, filed a request for his legal materials and did not receive a response for two months. Id., at 8. He submitted four additional requests to defendant C/O Muniz without a timely response and then submitted a 602 appeal on January 19, 2006, which was screened out by defendant Appeals Coordinator Collins on February 6, 2006, as being untimely. Id. Plaintiff then submitted a 602 appeal on Feb. 12, 2006, to defendant property officer Muniz without a timely response and on March 26, 2006, submitted it again to defendant Collins, which was screened out this time because plaintiff was falsely alleged to have failed to sign the form. Id., at 8-9. Plaintiff re-submitted the appeal to Collins pointing out that it was signed, but never received a response. Id., at 9.
Around mid-April of 2006, plaintiff was taken to be interviewed by defendant C/O's Gamboa and Romero about his attempt to escape from CSP-Lac. AC, p. 9. During the interview, defendants Gamboa and Romero offered to return plaintiff's legal materials if he told them what they needed to know about the escape attempt, i.e., how plaintiff did it, who was involved and how he obtained the material with which to do it; otherwise the legal material would "disappear." Id. Plaintiff refused to assist defendants Gamboa and Romero with the attempted escape plot, after which defendant Romero told plaintiff he would be "sorry" for having made that choice. Id., at 10. Defendants Gamboa and Romero then presented plaintiff with two boxes of his personal property, telling plaintiff that he could retrieve all of his "legal crap, and maybe once [plaintiff saw] what's there, or what's not there," he would change his mind about cooperating. Id. Plaintiff discovered that none of his legal material was in the boxes, and defendant Gamboa then asked if plaintiff wanted to talk to them, clearly implying that they had removed his legal material to show their power to get him to talk, but plaintiff still refused to cooperate. Id., at 10-11. Defendant Romero then told plaintiff he could have it his way, but would never see his legal materials again. Id., at 11.
In May, 2006, plaintiff filed a 42 U.S.C. § 1983 civil rights complaint in the Central District, 06-559 AHS (PJW)), after receiving no responses to his numerous inmate requests about his legal property. AC, p. 11. (The court takes judicial notice that this complaint, 06-559 AHS (PJW), was dismissed without prejudice in September 2007 (for failure to exhaust administrative remedies)).*fn2 On June 2, 2006, defendant CSP-Lac Correctional Sergeant Danna advised plaintiff to re-submit his 602 inmate appeal requesting his legal materials, explaining briefly his efforts to obtain his legal material, but strongly urging plaintiff to leave out his encounter with defendants Gamboa and Romero, promising that if plaintiff followed those guidelines, plaintiff's appeal would be granted and his legal materials returned; plaintiff did so on June 2, 2006, and defendant Danna granted the appeal (at the informal level) that day. Id., at 12 & Ex., p. 51.
On June 15, 2006, defendant Associate Warden Downs assured plaintiff defendant Danna was in the process of replacing the missing documents. AC, p. 12. Plaintiff received a letter from defendant Warden Wong in October 2006, regarding plaintiff's sister's complaint about the misconduct of defendants Romero and Gamboa and plaintiff was interviewed by the Investigative Services Unit, but nothing was done about restoring plaintiff's legal property. Id., at 13. Plaintiff was transferred to Pleasant Valley State Prison (PVSP) in mid-October, 2006, without having legal materials restored. Id. Plaintiff received notification, on or around October 31, 2006, by the Victim Compensation and Government Claims Board with respect to his claim regarding lost or destroyed legal materials that the issue would be better addressed through the court system. Id., at 13, 33.
Plaintiff was stone-walled in his efforts at PVSP to receive his legal material from January through May of 2007. AC, p. 14. On May 1, 2007, he was separated from all of his property when he was placed in ad seg at PVSP; he was transferred from PVSP to California Correctional Institution (CCI) around September 17, 2007, where his personal property was illegally detained and destroyed by a non-party named R. Cruz, against whom plaintiff is proceeding "independently." AC, pp. 14-15. On August 21, 2008, plaintiff sent a certified letter to defendant Warden Wong at CSP-Lac containing, inter alia, the granted appeal, to which he received no response, after which he sent a letter to defendant Grannis on November 2, 2008. AC, pp. 15-16. Defendant Grannis in a February 2008 response told plaintiff to submit a new appeal to the CCI appeals department, which plaintiff did on Feb. 7, 2008. Id., at 16. Before he received a response, he was transferred from CCI to High Desert State Prison (HDSP) on March 3, 2009. Id. Defendant Kots to whom plaintiff explained the situation told plaintiff he would hand carry the new 602 appeal and supporting documents to defendant Robertson. AC, pp. 16-17. On April 17, 2009, plaintiff was told that the new appeal had been routed to CCI; on May 7, 2009, the HDSP appeals coordinator told plaintiff to contact CSP-Lac officials which plaintiff hand done unsuccessfully "100 times over" with no success. Id. Plaintiff was again told on May 13, 2009, that this was a CSP-Lac issue and not one for HDSP. Plaintiff continued to make efforts to process his appeal through HDSP and was told again to contact CSP-Lac. Id., at 17-18. When plaintiff showed defendant Kots the letter from defendant Grannis instructing plaintiff to process an appeal through HDSP, he was told the appeal was processed to CSP-Lac. Id., at 19.
When plaintiff complained to defendant Grannis, she then contributed to thwarting his efforts by indicating CSP-Lac had no record of the appeal granted at the informal level by defendant Danna, even though plaintiff had sent her a copy of the granted appeal. AC, pp. 19, 69. Plaintiff wrote to defendant Cate with "neg[a]tive results." Id., at 20. Plaintiff alleges that his lack of access to his legal property denied him his First Amendment right to access the courts, contributing to the dismissals of his federal habeas petitions and denial of certificates of appealability and continues to prevent him from seeking to re-open those cases. Id., at 21-25, 28-29. He alleges that his due process and equal protection rights have been violated and that he has been subjected to cruel and unusual punishment.*fn3 Id. Plaintiff seeks money damages. Id., at 30. He also appears to believe a favorable outcome in this action could revive his federal habeas petitions. Id.
Defendants move for dismissal, under Fed. R. Civ. P. 12(b)(6), on the following grounds:1) plaintiff failed to state a First Amendment access to the courts claim; 2) plaintiff failed to state a due process claim for the loss of his personal property; and 3) plaintiff's allegations that defendants failed to follow the prison grievance procedure properly are insufficient to state a constitutional claim. MTD (docket # 23), p. 1.
Legal Standard for Rule 12(b)(6) Motion to Dismiss
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at ...