FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF PLAINTIFF'S ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM (ECF No. 10)
OBJECTIONS DUE WITHIN THIRTY DAYS
FINDINGS AND RECOMMENDATION
Plaintiff Emiliano Lopez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on January 21, 2011. (ECF No. 1.) The Court dismissed Plaintiff's original complaint, with leave to amend, for failure to state a claim. (ECF No. 9.) Plaintiff filed a First Amended Complaint on August 25, 2011. (ECF No. 10.) No other parties have appeared.
Plaintiff's First Amended Complaint is now before this Court for screening. For the reasons set forth below, the Court finds that it fails to state a claim upon which relief may be granted.
II. SCREENING REQUIREMENTS
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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
III. SUMMARY OF COMPLAINT
Plaintiff alleges violations of his First Amendment right to access to the courts. Plaintiff names the following individuals as Defendants: James A. Yates, Matthew Cate, Robert Trimble, Larry Mackin, L. Wilson, and P. Tuman.
Plaintiff alleges as follows: Plaintiff was scheduled to attend, via telephone, a hearing regarding his daughter on October 26, 2009. On August 18, 2009, Plaintiff sent a GA-22 form to the prison litigation office asking how he should go about getting access to a telephone so that he could attend the hearing telephonically. Plaintiff received a response from Defendant Wilson on August 20, 2009. Wilson stated that it was Plaintiff's responsibility to set up the court call and included instructions on how to set the call up using Court Call LLC. The memo was signed by Defendant Mackin. On September 7, 2009, Plaintiff wrote to Court Call following the instructions. Court Call responded on September 24, 2009 informing Plaintiff that the department where Plaintiff's hearing was being held did not utilize Court Call's services. On September 27, 2009, Plaintiff sent another request form to the litigation office relaying the information from Court Call. The litigation office did not respond, so Plaintiff sent a second request, which also received no response.
Plaintiff then spoke with his correctional counselor, Defendant Tuman, informing her of his upcoming hearing and asking if she could make arrangements for him to use a phone. She told him to talk to her about it later.
On October 12, 2009, Plaintiff gave a request form to the program office porter to slip under Defendant Tuman's door. Plaintiff again requested access to a phone and enclosed the letter from Court Call. These documents were lost in Tuman's office. On November 10, 2009, Tuman stated that she never received the documents or request.
On November 16, 2009, Plaintiff submitted a 602 grievance. Defendant Mackin denied the grievance at the informal level stating that he called Court Call and was told that Plaintiff never made contact with them. Plaintiff appealed his grievance and was interviewed by Mackin and Wilson at the first ...