FINDINGS AND RECOMMENDATIONS
Ronald Blamey, an inmate confined at Folsom State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. Following the court's screening order and plaintiff's consent to the dismissal of other claims and another defendant (Docket Nos. 18, 21, 24, 30), the case proceeds on the sole remaining claim against defendant Allen for denial of access to the courts. Currently before the court is defendant Allen's motion to dismiss the complaint for failure to state a claim. Dckt. No. 32. For the reasons that follow, the undersigned recommends that the motion be granted but that plaintiff be given leave to file an amended complaint.
The following facts are either alleged by plaintiff or contained within judicially-noticeable court records in the federal habeas proceedings that form the basis of plaintiff's claim of denial of access to courts.*fn1
Plaintiff was convicted of second degree murder in 2001 and subsequently imprisoned at California State Prison - Solano ("CSP-Solano"). Dckt. No. 1 at 6.*fn2 Plaintiff sought review of his conviction through direct appeal and habeas petitions in the state courts, all of which were unsuccessful. Id. at 6-7. Plaintiff then filed a federal habeas petition, Eastern District Case No. CIV S-04-1256 LKK DAD P, which was denied on the merits on March 14, 2008. Id. at 7; see also Case No. CIV S-04-1256 LKK DAD P, Findings and Recommendations of October 10, 2007 (Dckt. No. 41) & Order Adopting Findings and Recommendations of March 14, 2008 (Dckt. No. 48). Judge Karlton issued a certificate of appealability shortly thereafter, finding that plaintiff's claims were "debatable among jurists of reason" or "adequate to deserve encouragement to proceed further." Case No. CIV S-04-1256 LKK DAD P, Order Issuing Certificate of Appealability of April 16, 2008 (Dckt. No. 54); Dckt. No. 1 at 7.
Plaintiff's appeal was processed to the U.S. Court of Appeals for the Ninth Circuit and remained pending there until July 6, 2009, when the district court's judgment was affirmed. Dckt. No. 1 at 7; Case No. CIV S-04-1256 LKK DAD P, Dckt. No 57; Ninth Circuit Case No. 08-16013, Dckt. No. 17. That same month, plaintiff sought rehearing. Dckt. No. 1 at 8; Case No. 08-16013, Dckt. No. 20. Plaintiff expected to hear that the court had either denied his request for rehearing or decided to rehear the case. Dckt. No. 1 at 7. In the case of a denial, plaintiff intended to file a petition for writ of certiorari in the U.S. Supreme Court. Id.
While the Ninth Circuit considered plaintiff's request for rehearing, plaintiff was transferred from CSP-Solano to Folsom State Prison and "immediately placed on 'lockdown' (new arrival orientation)" for two weeks without access to his property. Id. He received his property on September 1, 2009 and sent a change of address notice to the Ninth Circuit on September 4, 2009. Id. at 7-8.
Also on September 1, 2009, the appellate court denied the petition for rehearing and sent the order so stating to the address it had on file for petitioner at the time at CSP-Solano. Id. at 8; Case No. 08-16013, Dckt. No. 21. The order denying rehearing did not make it to plaintiff at Folsom until February 23, 2010. Dckt. No. 1 at 8. However, the Ninth Circuit's docket reveals that the court's mandate issued on September 9, 2010 and was mailed to plaintiff at Folsom, and plaintiff does not dispute that he received the mandate in a timely fashion. Case No. 08-16013, Dckt. No. 23; see also id., Dckt. No. 24 (plaintiff's September 19, 2009 request to stay the mandate); Dckt. No. 36, Pl.'s Oppo'n to Def.'s Mot. to Dism. at 2. The mandate stated, "The judgment of this Court, entered 07/06/09, takes effect this date." Case No. 08-16013, Dckt. No. 23. Plaintiff filed a request to stay the mandate pending resolution of his petition for rehearing, but that request was deemed defective, as the mandate had already issued and, allegedly unbeknownst to plaintiff, the request for rehearing had already been denied. Id., Dckt. No. 24. It is not clear from the Ninth Circuit docket whether plaintiff was informed that his request to stay the mandate was defective; plaintiff claims that he was not so informed. Dckt. No. 36 at 2.
Despite having received the mandate of September 9, 2010 informing him that the Court of Appeals' decision to affirm the district court took effect on that date, plaintiff alleges that in late November 2009 he became worried about the lack of communication from the Ninth Circuit regarding "judgment." Dckt. No. 1 at 8. The Ninth Circuit's docket reveals that on November 12, 2009, the court received plaintiff's "notice re: send him a copy of ct's order filed 9/1/09." Case No. 08-16013, Dckt. No. 25. On November 26, 2009, plaintiff filed an application for an extension of time to file his petition for writ of certiorari from the Ninth Circuit's judgment in the U.S. Supreme Court from November 30, 2009 to January 22, 2010. U.S. Supreme Court Case No. 09A556 Docket, available at http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/09a556.htm. The Court declined to grant the extension. Id.
On December 20, 2009, plaintiff sent a letter to the CSP-Solano mailroom, asking about any legal mail sent to him from September-December 2009. Dckt. No. 1 at 8. Two months later, defendant Allen responded that there was no incoming legal mail for him during that period. Id. The very next day, on February 23, 2010, plaintiff received the order denying rehearing, which was postmarked September 1, 2009, addressed to him at CSP-Solano, and bore no postal marks indicating redirection. Id.
Plaintiff alleges that defendant Allen withheld the Ninth Circuit's order denying rehearing from the time it was mailed to him on September 1, 2009 until February 23, 2010 and thereby deprived him of his right to access the courts by causing him to be late in seeking U.S. Supreme Court review and, because the Supreme Court declined to give him an extension of time, preventing him from being able to actually file his certiorari petition. Id. at 3, 6-8. Plaintiff bases this allegation against defendant Allen specifically on the fact that he "miraculously" received the September 1, 2009 order just one day after he received her response informing him that there was no record of incoming legal mail for him from September-December 2009 at CSP-Solano. Id. at 4, 6.
II. Rule 12(b)(6) Standard
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"; rather, it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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. (internal quotation marks omitted). "[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 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." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976); Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
The court may additionally consider facts established by exhibits attached to the complaint, facts which may be judicially noticed, and matters of public record, including pleadings, orders, and other papers filed with the court. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 ...