ORDER AND FINDINGS AND RECOMMENDATIONS
Defendant's motion to dismiss came on regularly for hearing April 22, 2011. Plaintiff Frederick Miller, who is proceeding pro se, appeared on his own behalf. Attorney Franklin Gumpert appeared for defendant. Upon review of the documents filed in support of and in opposition to the motion and upon hearing the arguments of plaintiff and counsel for defendant, for the reasons set forth below the court concludes that defendant's motion is well taken.
In this action brought under 42 U.S.C. § 1983, plaintiff alleges his civil rights were violated by defendant, who is the Clerk of the Superior Court of California in Sacramento County. The gravamen of the complaint, as confirmed by plaintiff at the hearing in this matter, is that defendant allegedly violated plaintiff's civil rights by refusing to file documents submitted by plaintiff in a state court action. Defendant moves to dismiss plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6).*fn1
In considering a motion to dismiss for failure to state a claim upon which relief can be granted, such as this, the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the pleading in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
In order to avoid dismissal for failure to state a claim a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, ___U.S.___, ___,129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949.
Defendant has requested that the court take judicial notice of documents related to the matters at issue. (Doc. No. 23-1.) Defendant's request for judicial notice will be granted pursuant to Federal Rule of Evidence 201. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (on a motion to dismiss, court may consider matters of public record); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986) (on a motion to dismiss, the court may take judicial notice of matters of public record outside the pleadings).
In his first amended complaint, plaintiff alleges his constitutional rights were violated when he was denied access to the courts. The Civil Rights Act provides as follows:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
To state a claim under section 1983, a plaintiff must allege that: (1) defendant was acting under color of state law at the time the complained of act was committed; and (2) defendant's conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. 42 U.S.C. § 1983; see West v. Atkins, 487 U.S. 42, 48 (1988). A claim based on denial of access to courts must identify the underlying claim, the official acts frustrating the litigation, and a remedy that may be awarded as recompense that is not otherwise available in a future suit. See Christopher v. Harbury, 536 U.S. 403, 415 (2002).
In this case, plaintiff's denial of access to the courts claim is predicated on the alleged failure of the defendant Superior Court Clerk to file certain documents presented by plaintiff for filing in the Sacramento County Superior Court. However, the exhibits attached to plaintiff's original complaint and the documents of which this court may take judicial notice establish that plaintiff cannot state a cognizable claim for denial of access to the courts. Those exhibits and documents reflect that plaintiff presented documents to the Sacramento County Superior Court on December 30, 2009 and that on December 31, 2009, the Superior Court Clerk filed plaintiff's complaint, request for injunction and fee waiver application in Miller v. Wells Fargo Home Mortgage, et al., Sacramento County Superior Court Case No. 34-2009-00067589. That action was thereafter removed to federal court on February 3, 2010 (Case No. 2:10-cv-0284 GEB DAD PS). The defendant's refusal on behalf of the state court to thereafter file papers presented by plaintiff was therefore proper. See 28 U.S.C. § 1446(d) (State court shall proceed no further after filing of notice of removal unless and until case is remanded). The other basis for plaintiff's claim of denial of access to the courts is similarly untenable in that plaintiff presented a complaint, injunction and fee waiver application in a state court case against defendant Jones on March 3, 2011 and those documents were filed in the state court on March 4, 2011 in the case of Miller v. Jones, Case No. 34-2010-00072127. Under these circumstances, plaintiff cannot identify any official acts frustrating litigation of an underlying claim and thus cannot state a claim for denial of access to the courts.
By order filed October 4, 2010, plaintiff was previously advised of the deficiencies in his complaint and advised of the requirements for stating a claim under the Civil Rights Act. The first amended complaint does not cure the deficiencies evident in plaintiff's pleadings and plaintiff proffers no argument or evidence in the oppositionto the motion to dismiss that would suggest plaintiff can cure the pleading deficiencies. Because it appears amendment would be futile, the motion to dismiss should be granted with prejudice.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's request for judicial notice (Doc. No. 23-1) is granted;
2. Plaintiff's request for leave to file late opposition (Doc. ...