United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS DENYING DEFENDANT'S MOTION TO DISMISS (ECF No. 17)
MICHAEL J. SENG, Magistrate Judge.
I. PROCEDURAL HISTORY
Plaintiff Ronnell Hill, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 28, 2011. (ECF No. 1.) This matter proceeds against Defendant Peterson on Plaintiff's First Amendment access to court claim. (Screening Order, ECF No. 10.)
Defendant moved to dismiss this action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. (ECF No. 17.) Plaintiff filed an opposition (ECF No. 23) and Defendant replied. (ECF No. 25.) Plaintiff filed a sur-reply (ECF No. 26), which was stricken by the Court on motion by Defendant. (ECF No. 28.) Defendant's motion to dismiss is deemed submitted pursuant to Local rule 230( l ).
II. LEGAL STANDARDS
A. Motion to Dismiss
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar , 646 F.3d 1240, 1241-42 (9th Cir. 2011). In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall v. Nat'l Educ. Ass'n , 629 F.3d 992, 998 (9th Cir. 2010).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)); Conservation Force , 646 F.3d at 1242; Moss v. U.S. Secret Serv. , 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw all reasonable inferences in favor of the non-moving party, Daniels-Hall , 629 F.3d at 998, and pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman , 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter , 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio , 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010).
B. Access to Court
Inmates have a fundamental right of access to the courts. Lewis v. Casey , 518 U.S. 343, 346 (1996). The right is limited to direct criminal appeals, habeas petitions, and civil rights actions. Id. at 354. Claims for denial of access to the courts may arise from the frustration or hindrance of "a litigating opportunity yet to be gained" (forward-looking access claim) or from the loss of a meritorious suit that cannot now be tried (backward-looking claim). Christopher v. Harbury , 536 U.S. 403, 412-15 (2002). A plaintiff must show that he suffered an "actual injury" by being shut out of court. Lewis , 518 U.S. at 350-51. An "actual injury" is one that hinders the plaintiff's ability to pursue a legal claim. Id. at 351.
C. Request for Certificate of Appealability
28 U.S.C. § 2253(c)(1) precludes an appeal from a final order in habeas corpus proceedings unless a circuit justice or judge issues a certificate of appealability ("COA"). A COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A COA may issue when a petitioner demonstrates the questions raised are "debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle , 463 U.S. 880, 893 n.4 (1983).
III. PLAINTIFF'S CLAIMS
Plaintiff is currently housed at California Substance Abuse Treatment Facility in Corcoran, California. He was previously housed at California Correctional Institute ("CCI") in Tehachapi, California, where the events alleged in his first amended complaint occurred. ...