The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff, who is incarcerated at San Joaquin County Jail, proceeds in this civil rights action without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1), and Local Rule 302.
Plaintiff has submitted an affidavit, supported by a San Joaquin County Jail Resident Account Statement, that makes the showing required by 28 U.S.C. § 1915(a). (Dkt. No. 5.) The court grants plaintiff's request for judicial notice of his declaration and supporting documents, concerning plaintiff's efforts to obtain the Resident Account Statement. (Dkt. No. 6.) Accordingly, plaintiff's request to proceed in forma pauperis is granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.
28 U.S.C. §§ 1914(a), 1915(b)(1). By separate order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). The court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The complaint names defendants at three correctional facilities: Sierra Conservation Center ("SCC") (defendant Correctional Officer ("CO") Gonzales); Deuel Vocational Institute ("DVI") (defendants Warden Salinas, Sergeant Martinez, Sergeant Peters, and CO Stockton); and San Joaquin County Jail (defendants Sheriff/Coroner Moore, library law clerk Sing, and mailroom employee "John Doe"). Plaintiff appears to allege therein that his legal materials and personal property were confiscated when plaintiff was transferred from SCC to DVI in December 2010. Plaintiff concedes that he failed to exhaust administrative remedies pursuing the return of these materials, but asserts that such exhaustion was impossible because his efforts were repeatedly rebuffed. Plaintiff seeks a declaratory judgment and monetary damages, but avers that he will "waive all monetary damages [and] suit against DVI" if "all [of his] legal work propery [is returned] immediately undamaged"; and will "waive all monetary damages against [the] Sheriff" if the "Sheriff make[s] correction to grievance system, attitude, staff and mailroom." (Dkt. No. 1 at 28.)*fn1
Several problems beset the complaint. First, plaintiff's legal claims are improperly premised on an alleged violation of plaintiff's Eighth Amendment right to be free from cruel or unusual punishment. Plaintiff's several allegations that he has been denied access to the courts -- e.g., by the alleged failure of defendants to provide basic writing materials (pens, pencils, paper), blank legal forms (including blank grievance forms), and by allegedly depriving plaintiff of his own legal materials (including "books, previously filed writs, motions, research and case law" (Dkt. No. 1 at 10)) -- are properly framed as a First Amendment claim and, to be actionable, require a colorable allegation of actual injury.*fn2
"It is now established beyond doubt that prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977); see also Ching v. Lewis, 895 F.2d 608, 609 (9th Cir. 1990). This right "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bounds, 430 U.S. at 828. In order to state a denial of access claim under the First Amendment, a prisoner must show that he suffered an "actual injury" as a result of the defendants' actions by explaining how the challenged official acts or omissions hindered plaintiff's efforts to pursue a non-frivolous legal claim. Lewis v. Casey, 518 U.S. 343, 351-55 (1996). Actual injury may be shown if the alleged shortcomings "hindered his efforts to pursue a legal claim," such as having his complaint dismissed for "for failure to satisfy some technical requirement" or if he "suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint." Id. at 351.
Plaintiff's cursory retaliation claim (see Dkt. No. 1 at 13, ¶ 52), if potentially cognizable, must also be framed under the First Amendment. To state a claim for retaliation under the First Amendment, a plaintiff must allege that, on a specific date, an individual state actor took an adverse action against plaintiff in retaliation for plaintiff engaging in a constitutionally protected activity, and that the adverse action did not reasonably advance a legitimate penological objective. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985). Direct and tangible harm will support a First Amendment retaliation claim even without demonstration of a chilling effect on the further exercise of a prisoner's First Amendment rights. Rhodes, at 568 n.11. "[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some other harm" as a retaliatory adverse action. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009), citing Rhodes, 408 F.3d at 568, n11. Thus, plaintiff need not prove that the adverse action allegedly taken violated a constitutional right. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (stating that to prevail on a retaliation claim, plaintiff need not "establish an independent constitutional interest" was violated); see also, e.g., Hines v. Gomez, 108 F.3d 265, 268 (9th Cir.1997) (upholding jury determination of retaliation based on filing of a false rules violation report); Rizzo, supra, 778 F.2d at 531 (transfer of prisoner to a different prison constituted adverse action for purposes of retaliation claim). Rather, the interest asserted ...