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Penton v. Johnson

United States District Court, E.D. California

December 5, 2019

ANTHONY PENTON, Plaintiff,
v.
L. JOHNSON, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner, proceeding through counsel with a civil rights action. Defendants' motions for judgment on the pleadings[1] was noticed for hearing on November 21, 2019, before the undersigned. Because oral argument was not of material assistance, the hearing was vacated, and the matter submitted on the briefs. E.D. Cal. L.R. 230(g). Upon review of the documents in support and opposition, and good cause appearing therefor, the undersigned finds and recommends that defendants' motions be granted in part and denied in part.

         I. Plaintiff's Fourth Amended Complaint

         In his first cause of action, plaintiff alleges that defendants Bradford, Morrow, Johnson, Walker, Virga, Donahoo, Nunez, Gaddi, Quinn, Pool and Does 1-11 violated plaintiff's right to access the courts in violation of the First and Fourteenth Amendments. (ECF No. 104 at 20-21.) Plaintiff alleges, inter alia, that defendant Pool prevented plaintiff from using the inmate appeal system to proceed with his denial of access to the courts claims arising from the conduct of the remaining defendants. (ECF No. 104 at 24.) “As a result, [plaintiff] was not able to challenge his unconstitutionally increased sentence in light of the Ninth Circuit's opinion in Butler v. Curry, ” “constitut[ing] active interference with [plaintiff's] right of access to the courts, and resulted in a loss of a substantial, nonfrivolous claim.” (Id.)

         In his second cause of action, plaintiff alleges that defendants Johnson, Walker, Virga, Donahoo, Nunez, Gaddi, Quinn and Does 1-11, wrongfully withheld plaintiff's mail without notice and with no legitimate penological reasons, from November 8, 2007, through July 29, 2008. (ECF No. 104 at 25.)

         In plaintiff's third cause of action, he alleges that defendant Pool prevented plaintiff from filing inmate grievances regarding the withholding of plaintiff's mail from November 8, 2007, through July 29, 2008, violating plaintiff's First and Fourteenth Amendment rights. (ECF No. 104 at 28.)

         Plaintiff alleges in his fourth cause of action that “retaliation defendants” (Pool, Lynch, Salas, Besenaiz and Does 12-13) violated plaintiff's First and Fourteenth Amendment rights to file prison grievances without retaliation. (ECF No. 104 at 29.) Specifically, plaintiff alleges that defendant Pool prevented plaintiff from filing inmate grievances regarding the withholding of his mail, and “[d]uring this time, ” “Pool also continuously screened out [plaintiff's] attempts to pursue an inmate appeal related to the wrongful return of his 2008 annual package by” Salas. (ECF No. 104 at ¶¶ 57, 72-74, 99, 111, 113). Plaintiff alleges that the pattern of retaliation continued during this time period when defendant Besenaiz issued plaintiff an unfounded infraction for plaintiff purportedly refusing to allow his cellmate to have the lower bunk bed in their cell, even though plaintiff required the lower bunk due to health reasons. (ECF No. 104 at 16 ¶ 70, 29.) Plaintiff alleges that “[a]lso during this time, ” defendant Lynch told plaintiff that “you have nothing coming to you, referring to withholding [plaintiff's] rights, ” “and also told [plaintiff] that he should do all that he can to transfer to another prison.” (ECF No. 104 at 16 ¶ 69, 29.)

         II. Request for Judicial Notice

         Defendants ask the court to take judicial notice of the court docket and rulings in plaintiff's habeas case filed in the United States District Court for the Southern District of California, Case No. 3:06-00233 WQH RBM. (ECF Nos. 167-2, 169-2, referring to ECF Nos. 167-2 at 5-118; 169-2 at 5-131.)

         Generally, on Rule 12(b)(6) and Rule 12(c) motions, courts do not consider materials beyond the pleadings, or else risk converting the motion to one for summary judgment. See, e.g., Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), reversed on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Under Rule 201(b)(2) of the Federal Rules of Evidence, however, a court considering a Rule 12(b)(6) or (c) motion may take judicial notice of facts “not subject to reasonable dispute, ” including matters of public record. Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). “When considering a motion for judgment on the pleadings, this court may consider facts that ‘are contained in materials of which the court may take judicial notice.'” Heliotrope General, Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18 (9th Cir. 1999) (citation omitted).

         Thus, a court “may take judicial notice of proceedings in other courts both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (citation omitted). Rule 201(b)(2) permits a court considering a Heck issue to take judicial notice of relevant court records. Harley v. County of Los Angeles, 2011 WL 13214283, at *3, *7-*9 (C.D. Cal. June 13, 2011) (taking judicial notice of state court criminal records in connection with argument that plaintiff's claims related to his alleged unlawful arrest were barred by the Heck doctrine); see also Bailey v. Elders, 2012 WL 993292, at *3 (S.D. Cal. March 22, 2012) (taking judicial notice of state court criminal records in connection with motion to dismiss plaintiff's civil rights claims alleging false arrest and excessive force were barred by Heck).

         Here, because plaintiff's habeas action filed in the Southern District are directly relevant to the issues herein, defendants' requests for judicial notice are granted.

         III. Legal Standards: Motion for Judgment on the Pleadings

         Under Federal Rule of Civil Procedure 12(c), judgment on the pleadings may be granted when, accepting as true all material allegations contained in the nonmoving party's pleadings, the moving party is entitled to judgment as a matter of law. Chavez v United States, 683 F.3d 1102, 1108 (9th Cir. 2012). The applicable standard is essentially identical to the standard for a motion to dismiss under Rule 12(b)(6). United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011). Thus, although the Court must accept well-pleaded facts as true, it is not required to accept mere conclusory allegations or conclusions of law. See Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009).

         In ruling on a motion for judgment on the pleadings, a court may consider evidence beyond the pleadings when (1) it takes judicial notice under Federal Rule of Evidence 201, or (2) material is incorporated by reference to the complaint. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). The Court “need not . . . accept as true allegations that contradict matters properly subject to judicial notice or by exhibit” attached to the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citation omitted).

         A motion for judgment on the pleadings should be granted “when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).

         IV. The Civil Rights Act

         The Civil Rights Act under which this action was filed provides as follows:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362, 371 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). “Congress did not intend § 1983 liability to attach where . . . causation [is] absent.” See Monell v. Department of Social Servs., 436 U.S. 658 (1978). “A person ‘subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

         V. Discussion

         A. Claims re Access to the Courts and Right to Legal Mail

         Moving defendants seek judgment on the pleadings based on the Southern District's recent denial of plaintiff's 2006 petition for writ of habeas corpus, after considering plaintiff's objections that should have been submitted in 2007. Defendants also argue that the favorable termination rule should bar plaintiff's access to court and right to legal mail claims. But defendants are mistaken. In the instant case, the Court of Appeals for the Ninth Circuit found that plaintiff's access to the courts claim, which has a causal nexus with his right to legal mail claim, is “not an assessment of the merits of the underlying claim that is now lost.” (ECF No. 95 at 6.) Rather, “an inmate must merely show that he ‘could not present a claim to the courts because of the state's failure to fulfill its constitutional obligations.'” (ECF No. 95 at 6), quoting Allen v. Sakai, 48 F.3d 1082 (9th Cir. 1994) (emphasis added). Indeed, in a footnote, the Circuit noted that plaintiff's “constitutional injury was complete when his ability to challenge the magistrate judge's report and recommendation was impaired.” (ECF No. 95 at 6 n.1.) Such findings are law of the case, [2] which bar this court from granting defendants' motion on the grounds that the habeas petition was subsequently denied. Thus, whether or not plaintiff's habeas petition was subsequently denied some twelve years later does not constitute new evidence or changed circumstances warranting departure from law of the case.

         Similarly, the undersigned finds such claims are not barred under Heck v. Humphrey, 512 U.S. 477 (1994). In this action, plaintiff is not challenging his conviction, and his claim for damages will not necessarily imply the invalidity of his underlying conviction or sentence because any judgment in this action would establish only that his habeas action was not legally frivolous. See Lewis v. Casey, 518 U.S. 343, 353 n.3 & 354-55 (1996) (right of access to the courts is limited to non-frivolous criminal appeals, habeas corpus actions, and § 1983 suits). The undersigned is persuaded that plaintiff's access to the courts claim is analogous to the claim raised in Sprinkle v. Robinson, 2017 WL 1079833 (E.D. Cal. Mar. 22, 2017), adopted 2017 WL 2812973 (E.D. Cal. June 29, 2017), rejecting Burd v. Sessler, 702 F.3d 429 (7th Cir. 2012) (where prisoner sought law library access to withdraw his guilty plea, he cannot demonstrate actual injury without demonstrating that there is merit to his claim that he should have been allowed to withdraw his plea, thus his claim was barred under Heck). Also, the Circuit's prior ruling in the instant case distinguishes this case from the undersigned's prior finding in Delarm v. Growe, 2016 WL 1722382 at *2-3 (E.D. Cal. April 29, 2016), adopted 2:15-cv-2258 KJM KJN (June 10, 2016), which relied on the reasoning of Burd.

         Here, the undersigned adopts Judge Brennan's careful reasoning in finding that Heck does not bar plaintiff's access to the courts claim, but simply prevents plaintiff from seeking damages for wrongful incarceration if his conviction or sentence is not invalidated. Sprinkle, 2017 WL 1079833, at *5-10 (“Importantly, this approach honors Heck by disallowing the portion of the case that implicates the fact or duration of confinement while also honoring Lewis's holding that the ‘actual injury' component of an access-to-courts claim does not require the plaintiff to show that she would have won the underlying case.”). As acknowledged by plaintiff, he does not seek damages for wrongful incarceration, but rather seeks a declaratory judgment, compensatory, emotional, punitive, and nominal damages, costs and fees, and any other relief the court deems just and proper (ECF No. 104 at 30) for the alleged violation of plaintiff's access to the courts. Such decision is further supported by the Ninth Circuit's finding that plaintiff may seek compensatory damages based on his claim that withholding his mail hindered his ability to access the courts to pursue his habeas petition, and may seek compensatory damages “not clearly duplicable through another type of action.” (ECF No. 95 at 7-8.) While the prisoner in Sprinkle did not attempt to revive his habeas action, as pointed out by defendants, neither did the Circuit find in Sprinkle that Sprinkle's access to the courts claim was “not an assessment of the merits of the underlying claim.” (ECF No. 95 at 6.)

         Finally, defendants' argument that plaintiff does not meet the elements of an access to the courts claim, and thus he has no standing to pursue such claim, fails because the Ninth Circuit already found that petitioner “has standing to bring his access [to the courts] claim.” (ECF No. 95 at 6.) Such finding is further supported by the Supreme Court's holding in Spokeo v. Robins, 136 S.Ct. 1540, 1549 (2016). In Spokeo, the high court “reiterated that intangible, difficult-to-quantify harms may still be sufficiently concrete to create standing.” Canales-Robles v. Peters, 270 F.Supp.3d 1230, 1237 (D. Ore. Sept. 3, 2017), citing Spokeo, 136 S.Ct. at 1549; see also, Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998) (holding that “[t]he deprivation of First Amendment rights entitles a plaintiff to judicial relief wholly aside from any physical injury he can show, or any mental or emotional injury he may have incurred.”) In Canales-Robles, the court also adopted the reasoning of Sprinkle, holding that Heck was not an absolute bar to the action, and Heck did not bar recovery of nominal damages or absolutely bar compensatory and punitive damages. Canales-Robles, 270 F.Supp.3d at 1239-40.

         Here, petitioner alleges he suffered a prolonged delay in his access to the court, as well as to his legal mail, fairly traceable to the defendants, and constitutional violations such as this can be redressed by an award of compensatory or nominal damages. See, e.g., Johnson v. Young, 2017 WL 662904 (D. Nevada Feb. 17, 2017) (jury awarded nominal damages of $1.00 based on a finding that defendant retaliated against Johnson in violation of the First Amendment); Jones v. McDaniel, 717 F.3d 1062 (9th Cir. 2013) (jury awarded $2.00 in nominal damages).

         For all of the above reasons, the undersigned recommends that defendants' motions be denied as to plaintiff's access to the courts and right to legal mail claims.

         B. Alleged Failure to State A Cognizable Claim - Defendant Pool

         Defendants allege that plaintiff fails to state a cognizable claim against defendant Pool based on allegations in plaintiff's first and third causes of action. Plaintiff argues that defendants mischaracterize the nature of plaintiff's allegations against Pool.

         1. Fourth Amended Complaint

         In the first cause of action, plaintiff alleges that defendant Pool prevented plaintiff from using the appeal system to pursue plaintiff's denial of access to the courts claims, and as a result, plaintiff was unable to challenge his sentence in the Southern District. (ECF No. 104 at 24.) Plaintiff alleges Pool's actions interfered with plaintiff's right of access to the courts in violation of the First and Fourteenth Amendments. (Id.)

         In the third cause of action, plaintiff alleges Pool's actions prevented plaintiff from filing grievances regarding the withholding of plaintiff's mail from November 8, 2007, through July 29, 2008, in violation of the First and Fourteenth Amendments. (ECF No. 104 at 28.)

         2. Governing Standards

         The Due Process Clause protects plaintiff against the deprivation of liberty without the procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). However, it is well-established that “inmates lack a separate constitutional entitlement to a specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (“There is no legitimate claim of entitlement to a grievance procedure.”) “The defendants' disregard for these procedures, or their mishandling of his grievance documents, creates no actionable § 1983 claim.” Moody v. Martinez, 42 F.3d 1401 (1994). The Ninth Circuit noted that “[t]he Supreme Court has declared that ‘a State creates a protected liberty interest by placing substantive limitations on official discretion[, ]'” but found “that Moody's claims . . . contain no actionable allegation of such substantive limits or protected rights.” Id., at n.3. “Because there is no right to any particular grievance process, it is impossible for due process to have been violated by ignoring or failing to properly process prison grievances.” Daniels v. Aguillera, 2018 WL 1763311 (E.D. Cal. Apr. 12, 2018).

         Moreover, a prison official's denial of a grievance does not itself violate the constitution. See Evans v. Skolnik, 637 Fed.Appx. 285, 288 (9th Cir. 2015), cert. dism'd, 136 S.Ct. 2390 (2016) (unpublished opinion). “An allegation that a prison official inappropriately denied or failed to adequately respond to a grievance, without more, does not state a claim under § 1983.” Evans, 637 Fed.Appx. at 288, citing see Ramirez, 334 F.3d at 860 (“Ramirez's claimed loss of a liberty interest in the processing of his appeals does not satisfy this standard, because inmates lack a separate constitutional entitlement to a specific prison grievance procedure.”). “Screening-out, cancelling, rejecting or denying an inmate appeal ‘does not result in the denial of the minimal civilized measure of life's necessities, even if the justification for the screen-out [, cancellation, rejection or denial] is illegitimate.'” Millare v. Stratton, 2017 WL 9604609 (S.D. Cal. Feb. 28, 2017) (quoting Saenz v. Spearman, 2009 WL 2365405, at *6 (E.D. Cal. July 29, 2009)). See also e.g., Alford v. Gyaami, 2015 WL 3488301, at *10 n.2 (E.D. Cal. June 2, 2015) (“Even if prison officials delay, deny, or erroneously screen out a prisoner's inmate grievance, they have not deprived him of a federal constitutional right.”); Wright v. Shannon, 2010 WL 445203, at *5 (E.D. Cal. Feb. 2, 2010) (allegations that prison officials denied or ignored inmate appeals failed to state a cognizable claim under the First Amendment); Towner v. Knowles, 2009 WL 4281999 at *2 (E.D. Cal. Nov. 20, 2009) (plaintiff's allegations that prison officials screened out his inmate appeals without any basis failed to indicate a deprivation of federal rights); Williams v. Cate, 2009 WL 3789597, at *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in the vindication of his administrative claims.”). See also George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (holding that only persons who cause or participate in civil rights violations can be held responsible and that “[r]uling against a prisoner on an administrative complaint does not cause or contribute to the violation”); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (prisoner's pleading “failed to state a claim because no constitutional right was violated by the defendants' failure, if any, to process all of the grievances he submitted for consideration.”), quoting Azeez v. DeRobertis, 568 F.Supp. 8, 10 (N.D. Ill. 1982) (“[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment.”)

         However, prisoners do retain a First Amendment right to petition the government through the prison grievance process. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995), overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 230 n.2 (2001); see also Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015), citing Hasan v. U.S. Dep't of Labor, 400 F.3d 1001, 1005 (7th Cir. 2005) (“Prisoners' grievances, unless frivolous, concerning the conditions in which they are being confined are deemed petitions for redress of grievances and thus are protected by the First Amendment.”). Prisoners also “have a constitutional right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821 (1977). Such “right extends to prison grievance procedures.” Carr v. Stelzer, 733 Fed.Appx. 361, 362 (9th Cir. May 2, 2018) (citations omitted). Where a prisoner is required to exhaust the administrative grievance process, “a prisoner's fundamental right of access to the courts hinges on his ability to access the prison grievance system.” Bradley, 64 F.3d at 1279. Accordingly, interference with the grievance process may, in certain circumstances, implicate the First Amendment.

         In addition, where the prison grievance puts reviewing officials on notice of a violation, such facts may give rise to an obligation to intervene or further investigate. Evans, 63 Fed.Appx. at 288 (although the denial of the “grievance was not itself a constitutional violation, the grievance may have put the supervisory officials on notice that officers were violating the Fourth Amendment, ” and may be found “liable for their failure to intervene.”); Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006) (prison administrators cannot willfully turn a blind eye to constitutional violations being committed by subordinates). More recently, in an unpublished opinion, the Ninth Circuit determined that a prison official's refusal to process a grievance that failed to conform to the official's “personal conception of acceptable content” constituted “content-based discrimination that runs contrary to First Amendment protections.” Richey v. Dahne, 733 Fed.Appx. 881, 883-84 (9th Cir. 2018).

         3. Discussion

         Here, the amended pleading fails to demonstrate a causal connection between defendant Pool's actions as appeals coordinator and plaintiff's access to the courts allegation raised in his first cause of action. Defendant Pool, as appeals coordinator at CSP-SAC, could not have interfered with plaintiff's ability to pursue habeas relief in the Southern District of California because prisoners are not required to exhaust administrative remedies in connection with habeas claims. Rather, the exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). The exhaustion of administrative remedies is only required to pursue relief under 42 U.S.C. § § 1983, et seq., and other claims based on the conditions of confinement in state prison. Thus, whether or not defendant Pool improperly screened out plaintiff's administrative grievance or improperly warned plaintiff as to the resubmission of his screened-out appeal, Pool's actions or omissions had no bearing on whether or not plaintiff could file a pleading in his habeas action filed in the Southern District.

         Plaintiff argues that the undersigned previously determined that Pool's actions effectively blocked plaintiff's ability to file his inmate grievance pertaining to his withheld mail. (ECF No. 171 at 20.) However, plaintiff refers to this court's evaluation of whether or not plaintiff had exhausted his administrative remedies in order to pursue his claim concerning the withholding of his legal mail in this action. (ECF No. 33 at 11-15.) The undersigned found, and the district court adopted, that plaintiff should be excused from further exhaustion efforts in light of the alleged improper rejection of plaintiff's second and third attempts to pursue the legal mail and access to courts claims. (ECF No. 33 at 15; 40.) Such findings in plaintiff's favor meant that plaintiff could pursue such claims in this action. Therefore, such alleged improper screening did not impede plaintiff's access to the courts as to the withholding of plaintiff's legal mail because such claims are proceeding in this action. In other words, plaintiff cannot demonstrate an actual injury based on Pool's alleged improper screening because this court excused plaintiff's failure to exhaust and allowed such claims to continue in this action.

         Moreover, by the time defendant Pool screened out plaintiff's administrative claims on October 6 and 21, 2008 (ECF No. 29 at 31, 32), the alleged constitutional violations had already taken place. The Southern District of California had adopted the August 31, 2007 findings and recommendations, judgment was entered on December 26, 2007, plaintiff's time to appeal had run, and plaintiff's legal mail had already been withheld at CSP-SAC. Therefore, “[n]o further investigation on [Pool's] part would have resolved the alleged improper handling of plaintiff's incoming mail because [plaintiff] had returned to CSP-SAC by October of 2008.” (ECF No. 33 at 29.) Indeed, by the time Pool screened out plaintiff's appeal the second time, plaintiff's legal mail had been returned to him.

         Plaintiff argues that by instructing plaintiff not to return the appeal, and if he did, it would be placed in the appeals file and not processed (ECF No. 29 at 33), defendant Pool prevented plaintiff from “exercising his right to file a prison grievance” in violation of plaintiff's First Amendment rights. (ECF No. 171 at 21.) But plaintiff's disagreement with how defendant Pool screened out the grievance, without more, fails to state a cognizable access to the courts claim based on the improper withholding of plaintiff's legal mail, because plaintiff is pursuing such claims in this action. Certainly, the alleged improper screening excused plaintiff from the exhaustion requirement, allowing plaintiff to pursue his underlying claims in this action. But contrary to plaintiff's statement that Pool “instructed [plaintiff] not to file inmate appeals in the future, ” (ECF No. 171 at 32), defendant Pool's response did not inform plaintiff that he could not file any appeals in the future. Rather, defendant Pool's response was limited to the appeal plaintiff had re-submitted on two prior occasions based on Pool's failure to append prior screening forms. (ECF No. 29 at 33.) Defendant Pool's response did not prevent plaintiff from filing a grievance concerning other issues. In any event, plaintiff's deadlines in the Southern District had run, and plaintiff's mail had been withheld, by the time defendant Pool screened out plaintiff's grievances, and plaintiff is pursuing his underlying civil rights claims based on such alleged violations in this action.

         The undersigned understands that plaintiff is not raising a due process claim against Pool, [3]and appreciates plaintiff's nuanced argument that defendant Pool's actions in screening out the appeal challenging the withholding of plaintiff's legal mail violated plaintiff's First Amendment right to file prison grievances. But plaintiff presents no persuasive authority for the proposition that a prison appeals coordinator violates a prisoner's First Amendment right to file prison grievances simply by screening ...


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