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Larry B. Moore v. Edmund G. Brown

February 26, 2013

LARRY B. MOORE,
PLAINTIFF,
v.
EDMUND G. BROWN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM ECF No. 27 OBJECTIONS DUE WITHIN 14 DAYS

I. Background

Plaintiff Larry B. Moore ("Plaintiff") was a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983. On May 10, 2010, Plaintiff filed his Complaint. ECF No. 1. On April 10, 2011, Plaintiff filed a First Amended Complaint. ECF No. 13. On August 15, 2011, the Court dismissed Plaintiff's First Amended Complaint for failure to state a claim, with leave to amend. ECF No. 15. On December 7, 2011, Plaintiff filed his Second Amended Complaint. On April 20, 2012, the Court screened Plaintiff's Second Amended Complaint and dismissed it for failure to state a claim, with leave to amend. ECF No. 22. On August 24, 2012, Plaintiff filed his Third Amended Complaint. ECF No. 27.

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 2 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1),(2). 3

"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 4 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." Id. § 1915(e)(2)(B)(ii).

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, 9 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.

II. Summary of Third Amended Complaint

Plaintiff was incarcerated at North Kern State Prison ("NKSP") in Delano, California and Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events giving rise to this action occurred. Plaintiff names the following Defendants: California Governor Edmund Brown, California Attorney General Kamala Harris, Secretary of CDCR Matthew Cate, Director of CDCR George Giurbino, Principal Librarian of CDCR Jan Stuter, Superintendent of CDCR Education Glenn Brocking, Principal of NKSP Ross Zimmerman, LTA of NKSP Denise Carr, Warden of PVSP Paul Brazelton, Associate Warden of PVSP R. Fisher, Principal of PVSP J. Wynn, Vice Principal of PVSP E. Lopez, Vice Principal of PVSP P. Longoria, librarian of PVSP B. Buenafe, and S. C. Solis. Plaintiff also names Does 1 through 10.

Plaintiff alleges the following. On November 5, 2005, Plaintiff submitted a CDCR 602 inmate appeal pertaining to NKSP's A-yard law library. During lockdown, the A yard library hours changed. Plaintiff requested priority legal user ("PLU") status, with court deadlines granting him more frequent access to the law library. However, Defendants Cate, Giurbino, Stuter, Brocking, Zimmerman, and Carr did not allow him PLU status. Plaintiff complained that the Defendants failed to provide updated law, procedure, and local rules of courts. Computers were eventually updated, but many other law books were physically trashed. 2

On September 27, 2010, Plaintiff was transferred to PVSP against a judge's order.

Defendants Brazelton, Fisher, Wynn, Lopez, Longoria, and Buenafe used untrained prison staff to 4 handle library procedure. Defendant Solis denied Plaintiff copies beyond fifty pages. Defendant Solis also denied Plaintiff PLU status. Plaintiff complains that the computers were not updated. 6

Plaintiff contends a violation of the First Amendment right to access the courts, and a violation of the Due Process and Equal Protection Clause of the Fourteenth Amendment. Plaintiff 8 requests as relief compensatory and punitive damages, declaratory and injunctive relief, and costs of 9 suit.

III. Analysis

A. Access to the ...


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