United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
M. COTA UNITED STATES MAGISTRATE JUDGE
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the Court
is Defendant's motion to dismiss the complaint (ECF No.
17) for failing to state a First Amendment access to courts
claim and failing to state a First Amendment retaliation
claim. Specifically, Defendant argues Plaintiff failed to
allege an actual injury related to his access to courts
claim, and Plaintiff suffered only de minimis harm and failed
to allege Defendant acted because of Plaintiff's
protected conduct related to his retaliation claim.
filed his civil rights complaint on September 21, 2018,
asserting Defendant violated his First Amendment right to
access courts and his First Amendment right to be free from
retaliation. ECF No. 1. On October 24, 2018, this Court
screened the complaint and determined that sufficient facts
existed for the complaint to pass screening and authorized
service to Defendant T. Forbes. ECF No. 9. Defendant returned
the waivers of service on January 31, 2019. ECF No. 16.
Defendant filed his motion to dismiss on February 14, 2019.
ECF No. 17. Plaintiff filed his opposition to Defendant's
motion to dismiss on March 4, 2019, and Defendant filed his
reply on March 11, 2019. ECF Nos. 18, 19.
complaint raises two claims: (1) Plaintiff alleges Defendant
T. Forbes violated his First Amendment right to access courts
by continuously and intentionally failing to process his in
forma pauperis (IFP) application and trust account statement
for a current case pending in the Northern District of
California; (2) Plaintiff alleges Defendant T. Forbes
violated his First Amendment right to be free from
retaliation for protected conduct by failing to process his
in forma pauperis application and trust account statement in
that same litigation currently pending in the Northern
District of California.
Defendant's Motion to Dismiss
Defendant argues Plaintiff's complaint fails to state a
claim upon which relief can be granted for three reasons.
First, Defendant argues Plaintiff failed to adequately plead
an access to courts claim because Plaintiff has not pleaded,
and did not suffer, an actual injury. Second, Defendant
argues Plaintiff failed to state a retaliation claim because
Plaintiff fails to allege an adverse action that is more than
a de minimis harm. Third, Defendant argues Plaintiff failed
to state a retaliation claim because Plaintiff did not allege
Defendant acted in retaliation of some form of protected
MOTION TO DISMISS LEGAL STANDARD
12(b)(6) of the Federal Rules of Civil Procedure provides or
motions to dismiss for “failure to state a claim upon
which relief can be granted.” “To survive a
motion to dismiss, a omplaint 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. 554, 570 (2007)).
“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. The court must accept
as true the allegations of the complaint. Hospital Bldg.
Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976),
and construe the pleading in the light most favorable to
plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421
(1969). A pro se complaint must contain more than
“naked assertion[s], ” “labels and
conclusions, ” or “a formulaic recitation of the
elements of a cause of action, supported by mere conclusory
statements.” Iqbal, 556 U.S. at 678.
motion to dismiss for failure to state a claim should not be
granted unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claims which would
entitle him to relief. Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984) (citing Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). Pro se pleadings are
held to a less stringent standard than those drafted by
lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972)
(per curium). The court must give a pro se litigant leave to
amend his complaint “unless it determines that the
pleading could not possibly be cured by the allegation of
other facts.” Lopez v. Smith, 203 F.3d 1122,
1127 (9th Cir. 2000) (quoting Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995)). However, the court's
liberal interpretation of a pro se complaint may not supply
essential elements of the claim that were not pled. Ivey
v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268
(9th Cir. 1982). In ruling on a motion to dismiss pursuant to
Rule 12(b)(6), the court “may ‘generally consider
only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice.'” Outdoor Media Grp., Inc. v.
City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007)
(citing Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th