United States District Court, C.D. California, Western Division
LaKeith Leroy McCoy, Plaintiff, Pro se, Tehachapi, CA.
For J. Curiel, Appeals Corrdinator, individual capacity, Defendant: Andrew M Gibson, CAAG - Office of the Attorney General, Los Angeles, CA.
DOUGLAS F. McCORMICK, United States Magistrate Judge.
Report and Recommendation of United States Magistrate Judge
This Report and Recommendation is submitted to the Honorable R. Gary Klausner, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On January 28, 2014, Plaintiff, a state prisoner currently incarcerated at the California Correctional Institute (" CCI"), filed a pro se civil rights complaint, pursuant to 42 U.S.C. § 1983. Dkt. 3. After screening the Complaint in accordance with 28 U.S.C. § § 1915(e)(2) and 1915A, the Court dismissed the Complaint with leave to amend for failure to state a viable First Amendment claim for violation of the right to petition the government for redress of grievances. Dkt. 5.
On March 17, 2014, Petitioner filed a First Amended Complaint (" FAC"). Dkt. 6. Defendant J. Curiel (" Defendant") is named in his individual capacity only. Id. at 6. The FAC alleges that Defendant's title is " Correctional Counselor" and that he " held the rank of appeals coordinator" and as such " was legally responsible for screening all inmate appeals." Id. Plaintiff alleges that Defendant violated his First Amendment right to petition the government for redress of grievances. Id. More specifically, Plaintiff alleges that Defendant retaliated against him for using the prison grievance system by refusing to process his inmate grievances. Id. at 8.
On August 21, 2014, Defendant filed a motion to dismiss the FAC under Fed.R.Civ.P. 12(b)(6). Dkt. 16. On September 15, 2014, Plaintiff filed an opposition to Defendant's motion to dismiss. Dkt. 20 (" Opposition"). On September 29, 2014, Defendant filed a reply to Plaintiff's opposition. Dkt. 21.
B. Factual Allegations of the FAC
On March 5, 2012, Plaintiff filed a prison administrative grievance concerning his alleged inability to use the CCI prison law library. FAC ¶ .P 1-3, 9-14. Before his March 5, 2012 grievance, Defendant had returned several of Plaintiff's administrative grievances for failure to attach a CDCR Form 22. Id. .P.P 4-7. Plaintiff contends that he repeatedly attempted, without success, to obtain a CDCR Form 22 before submitting the March 5, 2012 appeal. Id. ¶ 9. In his appeal, Plaintiff explained that " I cannot attach appropriate docs because the staff will not respond." Opposition at 14. On March 14, 2012, Defendant returned Plaintiff's appeal, informing Plaintiff that he first " had to submit a CDC[R] Form 22 to the law librarian for a response." Id. ¶ 10.
Plaintiff then " immediately sent the appeal back to [Defendant] because Defendant had not paid attention to the facts of what was occurring." Id. ¶ 11. Defendant returned this resubmitted appeal on March 27, 2012, stating in an accompanying letter as follows: " Follow the directions given on the Form 695 dated 3/14/12. Do not resubmit the form unless you follow my instructions. Failure to do so ...