The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
On May 27, 2011, plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 ("Complaint"). On July 19, 2011, the Court issued a Memorandum and Order dismissing the Complaint, with leave to amend, pursuant to the screening provisions of the Prison Litigation Reform Act of 1995. On August 18, 2011, plaintiff filed a First Amended Complaint.
Congress has mandated that courts perform an initial screening of civil rights actions brought by prisoners with respect to prison conditions and/or that seek redress from a governmental entity or officer or employee of a governmental entity. The Court "shall" dismiss such an action if the Court concludes that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks relief against a defendant who is immune from suit. 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). In screening such a complaint, the Court must construe the allegations of the complaint liberally and must afford the plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). If a complaint is dismissed, a pro se litigant must be given leave to amend unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Id.; Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
ALLEGATIONS OF THE FIRST AMENDED COMPLAINT
Plaintiff is currently detained at the West Valley Detention Center ("WVDC") in San Bernardino County. (First Amended Complaint at 1.) Defendants are the San Bernardino County Sheriff's Department ("Sheriff's Department") and Deputy Smith, sued in his individual capacity. (Id. at 2.) Plaintiff asserts two claims for relief. In Claim One, he asserts an excessive force claim against defendant Smith. (Id. at 2-3.) In Claim Two, he asserts claims against the Sheriff's Department for violation of his right of access to courts. (Id. at 3-5.)
In his factual allegations in support of Claim One, plaintiff alleges that, on February 11, 2011, during a search, Deputy Smith yanked and squeezed plaintiff's penis, causing him pain. (First Amended Complaint at 2.) When plaintiff complained, Smith slammed him into the wall, choked and kicked him, stepped on his toes, tightly handcuffed him, bent his wrists and fingers so that the handcuffs would dig into his skin, and attempted to slam his face into the wall. (Id. at 2-3.) Plaintiff suffered physical, mental, and emotional injuries. (Id. at 2-3.) His physical injuries included "cuffburns," cuts, and nerve damage from the tight handcuffs. (Id.)
In his factual allegations in support of Claim Two, plaintiff alleges that the Sheriff's Department has a policy whereby only inmates representing themselves in criminal and habeas proceedings may use the WVDC law library. (First Amended Complaint at 3, Ex. 1.) Under this policy, inmates may not use the law library to research issues pertaining to the termination of parental rights. (First Amended Complaint at 3.) Plaintiff's parental rights were terminated by the San Bernardino County Juvenile Court, and the California Court of Appeal affirmed the judgment.*fn1 (First Amended Complaint at 3.) Plaintiff was represented by counsel during the proceedings in Juvenile Court and during his appeal to the California Court of Appeal. Plaintiff's counsel declined to file a petition for rehearing or a petition for review in the California Supreme Court; in letter dated February 24, 2010, counsel advised plaintiff that, in his opinion, there was no ground for rehearing or review, and filing either petition would be futile. (Id., Ex. 2.) Counsel notified plaintiff that, if he wished to file a pro se petition for review, the deadline was March 26, 2010. (Id.)
Plaintiff requested access to the law library so that he could file a petition for rehearing or a petition for review. On May 11, 2010, his request was denied based on the policy limiting the purposes for which inmates could use the law library. (First Amended Complaint at 3-4, Ex. 4.)
The California Court of Appeal denied plaintiff's pro se application, received on March 12, 2010, for a 60-day extension of time to file a petition for rehearing. (First Amended Complaint, Ex. 3.) Plaintiff did not file a petition for review in the California Supreme Court. He contends that he was unable to do so, because he was not allowed to use the law library and could not research applicable law. (First Amended Complaint at 4.)
Plaintiff further complains that he was not allowed to use the law library to conduct legal research regarding what steps to take to expedite service of summons by the United States Marshal's Service in two of his civil rights actions pending in this Court, O'Neal v. Dyberg, EDCV 10-0062-DDP (MAN), and O'Neal v. San Bernardino County Sheriffs Dept., EDCV 10-446-DDP (MAN), and to contest defendants' motion for summary judgment in another pending civil rights action, O'Neal v. Brenes, EDCV 09-1884-DDP (MAN). (First Amended Complaint at5.)
Plaintiff seeks compensatory and punitive damages. (First Amended Complaint at 5.)
I. PLAINTIFF'S EXCESSIVE FORCE CLAIM AGAINST DEPUTY SMITH WITHSTANDS SCREENING.
At this early stage of the action, the Court finds that plaintiff's
excessive force claim against defendant Smith under the Due Process
Clause of the Fourteenth Amendment withstands screening.*fn2
To continue pursuing this claim, however, plaintiff must
re-allege the claim ...