United States District Court, E.D. California
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
...