ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in a civil rights action brought under 42 U.S.C. § 1983. He alleges that he was denied prescription reading glasses and, as a result, he was unable to conduct meaningful legal research, his eyesight deteriorated, he suffered from headaches, and he had an increased risk of being assaulted by other inmates. Dckt. No. 1 at 4-5. Since the filing of his complaint he has received new glasses. Dckt. No. 18 at 1-2.
Defendants move to dismiss on the grounds that the complaint fails to state a claim upon which relief can be granted. Dckt. No. 19. Plaintiff opposes the motion, and defendants have filed a reply. See Dckt. Nos. 25, 23. For the reasons explained below, defendants' motion should be granted in part and denied in part.
Plaintiff has also filed a request for entry of default, which defendants oppose. See Dckt. Nos. 20, 21. That request is denied.
I. Request for Entry of Default
Plaintiff has filed a document styled "Declaration for Entry of Default." Dckt. No. 20. He declares that defendants failed to respond to the complaint within 20 days after they were served.
Fed. R. Civ. P. 12(a) provides that if a defendant has timely waived service, the defendant must serve a responsive pleading within 60 days after the request for waiver was sent. Here, the request for waiver of service was sent on August 10, 2010. Defendants' motion to dismiss was filed on October 1, 2010. The motion was timely and constitutes a responsive pleading for purposes of Rule 12. Plaintiff's request for entry of default is denied.
Plaintiff's complaint states that he is unable to read without his reading glasses, and that he suffers migraine headaches when he tries to read without them. Dckt. No. 1 at 9. He was given a magnifying glass to use instead of the readers, and he suffered the same headaches when using the magnifying glass. Id. at 10. He was denied reading glasses and was not allowed to see an optometrist. Id. at 9-10. Allegedly, he could not see to complete legal research. Id. at 10-11.
Defendants move to dismiss the complaint on the grounds that it fails to state 1) an access to the courts claim; 2) an Eighth Amendment claim; and 3) a due process claim. Dckt. No. 19-1 at 1. Plaintiff contends that he has properly pled all of these claims, but in the alternative, he seeks to amend or supplement his complaint if the court finds that it fails to state a claim. Dckt. No. 25.
In order to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), 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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "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." Id.
The complaint's factual allegations are accepted as true. Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984). The court construes the pleading in the light most favorable to plaintiff and resolves all doubts in plaintiff's favor. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
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. 518 U.S. at 351, 354-55. The right is limited to direct criminal appeals, habeas petitions, and civil rights actions. Id. at 354-55. To state a claim he was denied access to the courts, plaintiff must allege that the deprivation actually injured his ...