The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
SUPPLEMENTAL FINDINGS AND RECOMMENDATIONS
On September 30, 2011, the district judge adopted the undersigned's August 24, 2011 findings and recommendations that defendants' motion to dismiss be granted in part and denied in part,*fn1 subject to the following exception:*fn2
This court's review of the complaint has identified an issue not explained in the findings and recommendations: how the involvement of O'Brian*fn3 [former CSP-SAC Appeals Coordinator] and Grannis [Chief of Inmate Appeals, Sacramento Appeal Branch Office], in denying the grievances plaintiff identifies in his complaint, see ECF [Docket Entry] No. 1*fn4 at 21 ¶ 38, violated plaintiff's right of access to the courts. Having carefully reviewed the file generally, the court finds the remainder of the findings and recommendations to be supported by the record and by the proper analysis. . . . 4. The court declines to adopt the findings and recommendations as to the First Amendment claim for denial of access to the courts against defendants Grannis and O'Brian and refers consideration of this issue back to the magistrate judge. . . . (Docket Entry ("Dkt. No.") 79 at 2.)
For the reasons that follow, the undersigned again recommends that plaintiff's First Amendment denial of access claim proceed against defendants O'Brian and Grannis.*fn5
The district judge's directive requires that the undersigned reconsider whether plaintiff's complaint alleges a sufficient connection or link between the alleged actions of defendants O'Brian and Grannis, and the allegedly resulting deprivation of plaintiff's First Amendment right to access the courts. See Monell v. Department of Social Services, 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); see also Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) ("The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.").
Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other grounds by Lewis, 518 U.S. at 354. The right, however, "guarantees no particular methodology but rather the conferral of a capability -- the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts." Lewis, 518 U.S. at 356-57. In order to state a denial of access claim under the First Amendment, a prisoner must allege that he suffered an "actual injury" as a result of the defendants' alleged actions, by explaining how the challenged official acts or omissions hindered plaintiff's efforts to pursue a non-frivolous legal claim. Lewis, 518 U.S. at 351-55. Actual injury may be shown if the alleged shortcomings "hindered his efforts to pursue a legal claim," such as having his complaint dismissed "for failure to satisfy some technical requirement," or if he "suffered arguably actionable harm that he wished to bring before the courts." Id. at 351. The right of access to the courts applies to non-frivolous direct criminal appeals, habeas corpus proceedings, and Section 1983 actions. Id. at 353 n.3, 354-55. Where a prisoner asserts a backward-looking denial of access claim -- one seeking a remedy for a lost opportunity to present a legal claim -- he must show the loss of a "non-frivolous" or "arguable" underlying claim, "the official acts frustrating the litigation," and "a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought." Christopher v. Harbury, 536 U.S. 403, 415, 417 (2002).
The right of access to the courts also applies to prison grievance proceedings, Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995), abrogated in part on other grounds by Shaw v. Murphy, 532 U.S. 223 (2001), because "a prisoner's fundamental right of access to the courts hinges on his ability to access the prison grievance system," Bradley, 64 F.3d at 1279. In general, a defendant's participation in the administrative review or denial of a plaintiff's inmate appeal does not give rise to a cause of action, particularly one premised on due process rights. See e.g. Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988), cert. denied, 488 U.S. 898 (1988) (no constitutional right to an inmate appeal or grievance process); Lewis v. Ollison, 571 F. Supp. 2d 1162, 1170 (C.D. Cal. 2008) (dismissing corrections personnel who simply participated in the review and denial of plaintiff's inmate appeals). However, prison officials have an affirmative obligation to timely and properly process inmate appeals. If the procedures for obtaining an official response to an inmate appeal are not predictable, that is, "not known and unknowable with reasonable effort," Albino v. Baca, 697 F.3d 1023, 1037 (9th Cir. 2012), then the inmate has no administrative remedy. Thus, a correctional official's failure to process an inmate's administrative grievance, rendering the inmate unable to timely or fully access the courts, and resulting in actual legal injury, may state a denial of access claim.
The District Judge references a paragraph in plaintiff's original complaint (Dkt. No. 1 at 21 ¶ 38), repeated verbatim in plaintiff's operative First Amended Complaint ("FAC") (Dkt. No. 24 at 22-3 ¶ 38),*fn6 which sets forth only some of the factual allegations*fn7 in support of plaintiff's claimed denial of access to the courts, mentioning only defendant Morrow. This claim is more broadly set forth in plaintiff's Third Cause of Action, which challenges, in pertinent part, "the direct denials of Defendants to provide Plaintiff with his court legal appeal property documents . . . ." (id. at 39).*fn8
The undersigned considered these allegations in tandem with plaintiff's other relevant allegations set forth in his FAC (54 pages in length), and exhibits (totaling more than 400 pages). As this court found in its initial screening order, the FAC alleges that plaintiff filed several administrative grievances, which alleged that prison officials had failed to forward plaintiff's legal and in forma pauperis materials to designated courts, improperly withheld plaintiff's mail, and failed to respond to plaintiff's complaints that officials harassed plaintiff, and retaliated against him, for attempting to exercise his First Amendment right to file grievances. (See Dkt. No. 21 (Screening Order) at 10-11, 18; Dkt. No. 24 (FAC) at 23-24 (¶¶ 40-42), 25-26 (¶ 50), 28-30 (¶ 53, §§ c, f)). Broadly construed, as required, see e.g. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),*fn9 plaintiff's many exhibits (i.e., multiple administrative grievances and letters that allegedly were not acted upon and/or returned) lend support for his claim that the appeals supervisors -- i.e. defendants O'Brian and Grannis -- intentionally blocked (or knowingly failed to prevent their subordinates from blocking) plaintiff's legitimate efforts to utilize the appeals process to obtain his own legal documents essential for seeking redress in the courts.
For example, in a letter to Grannis dated January 10, 2006, plaintiff expressly alleged that O'Brian had deliberately failed to act on five of plaintiff's specified administrative grievances, which included challenges to court access and mailroom processing. (See Dkt. No. 24, Exhs., at 240-42.) Plaintiff attached copies of the letters he had written to the Office of Internal Affairs on January 7, 2006, and January 30, 2006, which expressed the same complaints, and included an allegation that the "Chief of Inmate Appeals" (Grannis) had not responded to plaintiff's communications. (Id. at 244-60.) It appears that O'Brian thereafter returned some or all of these documents to plaintiff on February 15, 2006, without processing. (Id. at 253.) Moreover, it appears that Grannis belatedly responded to plaintiff's letters, declined to address plaintiff's concerns, and directed plaintiff back to O'Brian: (1) the first response, dated April 15, 2006, apparently signed by Grannis, informs plaintiff that "your appeal . . . is in process within the Inmate Appeals Branch . . . . [T]he Appeals Coordinator [O'Brian]. . . can answer any questions you have . . . ." (id. at 239); (2) the second response, dated April 28, 2006, and initialed on behalf of Grannis, informs plaintiff that "[y]our concerns can be best addressed by filing a CDC Form 602 . . . . [T]he Appeals Coordinator [O'Brian] . . . can answer any questions you have . . . ." (id. at 243).
The alleged inaction by Grannis (moreover, the referral of plaintiff back to O'Brian), and the alleged refusal of O'Brian to process plaintiff's grievances, were liberally construed by the undersigned to allege a sufficient linkage with plaintiff's "denial of access" claims. As the undersigned stated in the screening order, Grannis' affirmative act of denying as moot (rather than addressing the merits of) plaintiff's "comprehensive" administrative grievance, "coupled with plaintiff's allegations that [Grannis] knowingly failed to intervene or direct [his] subordinates [including O'Brian] to intervene, on plaintiff's behalf, are sufficient to state [a] potential prima facie failure to supervise/train claims, viz., that [Grannis] 'fail[ed] to train subordinate officer[s] and prevent them from maintaining a continuous pattern of retaliation(s) and harassment for Plaintiff's exercise of his First . . . Amendment rights of access to courts . . . ." (Dkt. No. 21 at 18 (internal citation omitted).) Moreover, these allegations served, in part, to sustain the continued presence in this action of all three named supervisory defendants, viz., CSP-SAC Warden Kernan, Associate Warden Walker, as well as Appeals Coordinator Grannis.
Subsequently, in this court's findings and recommendations, the undersigned recounted plaintiff's alleged actual injuries due to his allegedly impaired access to the courts: "(1) his inability to present a timely and complete petition for review before the California Supreme Court, in the direct appeal of his criminal conviction, citing case number LA042924, and California Supreme Court Case No. S138165; and (2) plaintiff's inability to fully state all grounds in support of his habeas corpus petition filed in the United States District Court for the Central District of California, resulting in the dismissal of claims based on procedural default, failure to exhaust, and failure to raise issues on direct appeal in the state courts. This court's review of plaintiff's habeas action, Navarro v. Sullivan, Case No. Civ-07- 1593 DDP [previously SGL] PJW, supports plaintiff's assertion that he failed to exhaust his state court remedies on some claims. (See generally id. at Dkt. No. 61 (according plaintiff (petitioner therein) the option of dismissing his unexhausted claims and proceeding on his exhausted claims, or to have his entire petition dismissed as 'mixed.')." (Dkt. No. 78 at 21 (fn. omitted).) As the undersigned previously noted, the demonstrated failure of plaintiff to exhaust state court remedies on his habeas claims lends substantial support for plaintiff's claim that his alleged denial of access to the courts caused him actual injury. Significantly, defendants did not file objections to the undersigned's findings and recommendations.
The undersigned has again reviewed the record, and again finds
support for plaintiff's general allegations that the failure of any
official to respond to several of plaintiff's grievances resulted in a
denial of access to the courts. As set forth in plaintiff's exhausted
administrative grievance initiated on October 24, 2005 (Log No. CA
05-02084), plaintiff alleged in part that, during his continued
placement in the Administrative Segregation Unit ("ASU"),*fn10
legal materials were improperly withheld and officials failed to
respond to plaintiff's prior administrative grievances, causing
plaintiff "irreparable harm (my appeals case in Supreme/Federal
Court)" (Dkt. No. 24 at 70). Plaintiff explained that, "I have had my
appeal in the California Supreme Court and that date was started on
September 14, 2005. I submitted less than half of what is expected of
this court for review. I could not even make copys (sic) of factual
exhibit documents to show the court my full case. I now have to
explain to the court why I was at a disadvantage. . . . I will [also]
ask the Federal Court on my habeas corpus to inquire . . . ." (Id. at
71.) Plaintiff again alleged that, "My California Supreme Court Appeal
is affected by this on my appeals process" (id. at 75) and, more
specifically, "This restrictive Ad-Seg has effected my ability to
prepare my case. I need to show the courts legal cause now. And copys
(sic) of all documents in C-file from 5-4-05 until present concerning
Ad-Seg." (Id. at 76.) Defendant
O'Brian investigated this grievance at the Second Level of Review.
(Id. at 85.)
Similarly, during this same period, plaintiff apparently submitted an unexhausted grievance expressly premised on an alleged denial of "access to courts" (Dkt. No. 24-2 at 16-20), in which he alleged that he had "already been harmed by not being called previously for law library in my petition for review in the California Supreme Court . . . ." (id. at 18). Plaintiff complained therein that his prior grievances ...