United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
a state prisoner who spent time at Solano County Jail as an
arrestee and pretrial detainee, is proceeding pro se with a
civil rights action filed pursuant to 42 U.S.C. § 1983.
By order filed September 30, 2015, plaintiff's second
amended complaint was dismissed with leave to amend. ECF No.
29. Plaintiff has now filed a third amended complaint, ECF
No. 30. Plaintiff has consented to the jurisdiction of the
undersigned magistrate judge for all purposes pursuant to 28
U.S.C. § 636(c) and Local Rule 305(a). ECF No. 7.
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 monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989); Franklin, 745 F.2d at 1227.
complaint must contain more than a “formulaic
recitation of the elements of a cause of action;” it
must contain factual allegations sufficient to “raise a
right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“The pleading must contain something more . . . than .
. . a statement of facts that merely creates a suspicion [of]
a legally cognizable right of action.” Id.
(quoting 5 C. Wright & A. Miller, Federal Practice and
Procedure § 1216, pp. 235-35 (3d ed. 2004)). “[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, 566 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738,
740 (1976), construe the pleading in the light most favorable
to the plaintiff, and resolve all doubts in the
plaintiff's favor. Jenkins v. McKeithen, 395
U.S. 411, 421 (1969).
third amended complaint, plaintiff alleges that while he was
held at Solano County Jail as “an arrestee, a pretrial
detainee, and a sentenced prisoner, ” his
constitutional rights were violated when he was not allowed
to contact his family in Belize, Central America by mail or
phone. ECF No. 30 at 5-7; ECF No. 30-1 at 1-3.
Specifically, plaintiff alleges that he could not contact his
family because the phone system at the jail did not allow
international phone calls and the postal system at Solano
County Jail did not allow inmates to send international mail.
ECF No. 30 at 5-6; ECF No. 30-1 at 2. Because plaintiff was
unable to contact his family, he was unable to make bail
arrangements, hire an attorney in his Solano County criminal
case, recover his trailer home that had been towed, and
“pursue non-frivolous claims concerning [his]
conviction and/or [his] conditions of confinement.” ECF
No. 30 at 6. Plaintiff further alleges that a Solano County
Superior Court judge granted him two phone calls to his
mother in Belize, yet Solano County Jail Commander Rod Marsh
refused to allow him to make the calls, which prevented him
from “making arrangements prior to sentencing.”
Id. at 6-7.
Right of Access to the Courts
has a constitutional right of access to the courts, and
prison officials may not actively interfere with his right to
litigate. Silva v. Di Vittorio, 658 F.3d 1090,
1101-02 (9th Cir. 2011), overruled on other grounds as
stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th
Cir. 2015)). The right is limited to bringing complaints to
federal court in direct criminal appeals, habeas petitions,
and civil rights actions. Lewis v. Casey, 518 U.S.
343, 354 (1996). It is not a right to discover such claims or
to litigate them effectively once filed with a court.
Id. at 354-55. A plaintiff must show that he
suffered an “actual injury, ” i.e. prejudice with
respect to contemplated or existing litigation, such as the
inability to meet a filing deadline or present a
non-frivolous claim. Id. at 348-49. An “actual
injury” is one that hinders the plaintiff's ability
to pursue a legal claim. Id. at 351.
dismissing his second amended complaint with leave to amend,
the court informed plaintiff of the following:
Plaintiff's lawsuit is predicated on his complaints about
various alleged deficiencies in phone and mail systems at
Solano County Jail. Specifically, plaintiff claims he was
harmed by (1) his inability to contact his mother by phone
through the collect-only phone system; (2) his inability to
send his mother international mail; (3) his inability to use
the free phone for criminal pro per inmates; and (4) the
denial of his requests for legal mail, photocopies, and
At the outset, the court notes that plaintiff does not allege
that the above deficiencies interfered with his access to
retained or appointed counsel. Rather, plaintiff alleges that
he was unable to find an attorney to handle “other
civil matters” because none of the attorneys he called
would accept collect phone calls, and although he attempted
to contact ...