The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISMISSING CERTAIN CLAIMS, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF No. 38)
Plaintiff Guillermo Garcia ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action was originally filed in Tuolumne County Superior Court and on November 11, 2010, Defendants removed the action. On December 21, 2010, Defendants consented to the jurisdiction of the magistrate judge. (ECF No. 5.) On January 10, 2011, Plaintiff consented to the jurisdiction of the magistrate judge. (ECF No. 8.) Currently before the Court is that second amended complaint, filed October 24, 2012. (ECF No. 38.)
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
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, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
Further, under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
II. Second Amended Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at the California Correctional Institution, Tehachapi. Plaintiff brings this action against Litigation Coordinator E. McCue and Correctional Officer G. Saylor alleging violations of the First, Fifth, Sixth, Eighth, and Fourteenth Amendments based upon the failure to provide him with telephone access for a court call. Plaintiff is seeking declaratory and injunctive relief and monetary damages.
On August 4, 2008, while housed at Sierra Conservation Center, Plaintiff sent a request by legal mail to the litigation coordinator to appear for a telephonic court call on August 22, 2008, at 8:30 a.m. in case no. BC-56199. (Sec. Am. Compl. ¶ 8, ECF No. 38.) Defendants McCue and Saylor had arranged for Plaintiff to participate in court calls on approximately fourteen prior occasions. (Id. at ¶ 10.)
Plaintiff appeared at Defendant Saylor's office at 8:30 a.m. on August 22, 2008. Plaintiff asked Defendant Saylor if he was available to make the court call and Defendant Saylor stated, "no." (Id. at ¶ 11.) Defendant Saylor told Plaintiff to make arrangements through the litigation coordinator's office. Plaintiff informed Defendant Saylor that he had made a request on August 4, 2008, and a second request five days prior. (Id. at ¶ 12.) Plaintiff went to Sergeant Dean who told him to go to school and he would be called later. (Id. at ¶ 13.)
At 10:00 a.m. Sergeant Dean contacted Plaintiff and told him to go to Defendant Saylor's office to make his court call. Upon making the call, the Court Clerk informed Plaintiff that the judge had already ruled. (Id. at ¶ 14.) On August 24, 2008, Plaintiff received a letter from the Court informing him that the action had been dismissed because he did not appear for the court call. (Id. at ¶ 15.)
Plaintiff alleges that Defendant Saylor retaliated against him by failing to provide phone access because he had filed an inmate appeal approximately one month prior in which he appealed an attempt by the Classification Committee, which included Defendant Saylor, to transfer him. (Id. at ¶¶ 19, 20.)
For the reasons discussed below, Plaintiff states a claim against Defendants Saylor and McCue for denial of access to the court, but the second amended complaint fails to set forth any other cognizable claims under section 1983.
The Supreme Court has long recognized that "(l)awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285 (1948); see also Pell v. Procunier, 417 U.S. 817, 822, (1974); Wolff v. McDonnell, 418 U.S. 539, 555 (1974). "The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration." Jones v. ...