FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 28 U.S.C. § 1983. Before the court is a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure filed on behalf of defendants Behler and White. When plaintiff filed no opposition to the motion, on January 5, 2012 the court ordered plaintiff to file his opposition, if any, to the motion to dismiss within thirty days of the order. On February 13, 2012, plaintiff was granted an additional thirty day extension of time to file his opposition, if any, to the motion to dismiss brought on behalf of defendants Behler and White. Nonetheless, plaintiff has still failed to file any opposition to the pending motion.
On May 16, 2011, the court issued its screening order, determining that plaintiff's complaint stated a cognizable First Amendment claim against defendants Williams, McDonald, Behler and White for interfering with plaintiff right to access the courts. (Doc. No. 6 at 2.) At that time the court also deemed that service of the complaint was not appropriate with respect to named defendants Mirich, Warden Dickinson, Deputy Attorney General Pass, and Swan. (Id.)*fn1
On November 15, 2011, defendants McDonald and Williams filed their answer. On the same day, defendants Behler and White filed the pending motion to dismiss. As noted above, plaintiff has filed no opposition to the pending motion to dismiss despite being provided additional time to do so.*fn2 On April 6, 2012, defendants filed with the court a notice of non-opposition to their motion to dismiss. (Doc. No. 33.)
In their motion to dismiss, defendants Behler and White argue that plaintiff has failed to state a cognizable claim against them for denying him access to the courts in violation of his First Amendment rights. As noted by the moving defendants plaintiff alleges that the defendants in general caused him to both fail to appear at court hearings and to file various documents in his civil rights action that was then pending in state court. Counsel notes, however, that the only allegations of plaintiff's complaint with respect to the actions of defendant Behler are that for a week preceding a telephonic court appearance, Behler attempted to contact defendant Williams, the litigation coordinator, to ensure that plaintiff was properly scheduled to participate in his telephonic court appearance. (Compl. at 4.) According to plaintiff's complaint, defendant Behler informed plaintiff that he was unable to reach defendant Williams by telephone but was able only to contact him by e-mail. (Id.) Defense counsel emphasizes that those are the only allegations of plaintiff's complaint mentioning defendant Behler. Defense counsel contends that these allegations, even if accepted as true, show that Behler properly attempted to contact the litigation coordinator on plaintiff's behalf in order to ensure that he was provided access to the courts.
Counsel argues that the only mention of defendant White*fn3
in the complaint is plaintiff's allegation that defendant
White confiscated plaintiff's work card thereby delaying plaintiff's
release for work. (Id.) Counsel notes that this sole allegation of the
complaint against defendant White has no relation to plaintiff's claim
that his First Amendment right to access the courts was
Based on these arguments, defendants Behler and White argue that the allegations of plaintiff's complaint, even if established as true, would not establish that they were involved in depriving plaintiff of any constitutional right, let alone his right to access the courts, and that plaintiff has therefore not stated a cognizable § 1983 claim against them.
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that plaintiff can prove no set of facts in support of the claim that would entitle him to relief. See Hishon v. ...