Opinion
CV-21-0084-PHX-JAT (JFM)
08-09-2021
Michael Dwayne Outley, Jr., Plaintiff v. David Shinn, et al., Defendants.
REPORT & RECOMMENDATION
James F. Metcalf United States Magistrate Judge
Under consideration is Plaintiff's Motion to Amend filed June 28, 2021 (Doc. 25).
A. REPORT AND RECOMMENDATION
This matter is before the undersigned magistrate judge on referral for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). Because the appropriate resolution of the Motion to Amend and/or screening of the amended pleading is dispositive of some of Plaintiff's claims, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).
B. BACKGROUND
On January 15, 2021 pro se Plaintiff Outley, who is confined in the Arizona State Prison's Red Rock Correctional Center, filed his original Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. Plaintiff named as Defendants: Arizona Department of Corrections (ADC) Director David Shinn; RRCC Warden Bruno Stolc; and Assistant Wardens Greg Fizer and T. Degard. In his Request for Relief, Plaintiff seeks monetary damages and injunctive relief.
In screening Count One, directed at the prison's system for prisoner telephone calls (limits on callers, background checks, limits on calls, etc.), the Court found Plaintiff failed to show any Defendant was personally involved, apart from their roles within the prison. Accordingly, the Court construed Count One as directed against Defendants in their official capacities only. The Court found that any claim for monetary damages could not be maintained against defendants in their official capacity, rather only for prospective declaratory and injunctive relief. The Court found Count One states a First Amendment claim against Defendants Shinn and Stolc only, and dismissed the similar claims against Defendants Fizer and Degard as duplicative. The substantive due process claim was dismissed as governed by more specific constitutional guarantees. The equal protection claim was dismissed for failure to allege a protected class, or to show a “class-of-one” violation.
In screening Count Two, directed at the prison's policies limiting his access to photos, videos and audio emanating from his criminal prosecution (e.g. crashed vehicles, parking lots, seized items) and relevant to civil litigation alleging excessive force, failure to render aid, and invasion of privacy, the Court found that Plaintiff failed to adequately state a denial of access claim because he failed to allege an actual injury, or to show it pertained to a protected attack on the criminal sentence or conditions of confinement. Moreover, Plaintiff failed to identify the relevant policy, or how it prevented access, or to show Defendants had sufficient knowledge or involvement to adequately state either an official or individual capacity claim.
The Court dismissed Count Two and Defendants Fizer and Degard, and directed a response by Defendants Shinn and Stolc to the official capacity, First Amendment claims in Count One.
Shinn and Stolc filed an Answer (Doc. 16) on April 20, 2021, and the Court has set a schedule which included, inter alia, a deadline of July 6, 2021 for motions to join or amend. (Order 4/21/21, Doc. 18 at 3.)
C. MOTION TO AMEND
1. Motion to Amend
Plaintiff seeks leave to file his proposed First Amended Complaint (Doc. 25-2 at 2-17.) Defendants have responded (Doc. 27), arguing the amendment is futile and because it rehashes previously rejected claims it is dilatory, unduly prejudicial, and would cause undue delay. In the alternative, Defendants ask that the Court screen the amended complaint under 28 U.S.C. § 1915A and 1915(e)(2). Plaintiff has replied (Doc. 28) arguing that his proposed complaint is not futile, but adequately states new or revived claims, and claims against the newly added defendants.
2. Proposed Amendment
Plaintiff has attached to his Motion a copy of his original Complaint (Attachment 2), with markings intended to show matter which has been deleted. He also attaches his proposed First Amended Complaint, with markings intended to show matter which is newly added.
This split approach does not meet the requirements of Local Rule of Civil Procedure 15.1(a) which requires a single, redlined copy showing both additions and deletions. Because the undersigned concludes the amendment is futile, this defect has not been relied upon to deny the Motion to Amend. For the same reason, the undersigned has not required Plaintiff to lodge a proposed from of First Amended Complaint ready for filing.
With regard to parties, Plaintiff deletes previously dismissed Defendants Fizer and Degard and purports to add a Defendant John/Jane Doe Policy Commander.
In Count One, Plaintiff continues to assert First Amendment “suppression of speech, suppression of intimate association” and Fourteenth Amendment “life & liberty” claims based on “Freedom of Expression (phone access).” He adds various allegations and clarifies that his claim in Count One is limited to a claim based on the requirement for pre-approvals of callers, and not the limits on the number of calls.
Plaintiff eliminates his previously dismissed “access to the court” claim from Count Two, and instead asserts a “mail” claim under the “1st Amendment (right to expression), 6th Amendment, 14th Amendment, ” based on refusal to allow him to possess in his cell (and rather to only view) crime scene photos involved in other litigation. He argues Defendants Shinn and Stolc are responsible because of their denial of his grievance appeal and grievance, and their enactment of the controlling policies, and Defendant John/Jane Doe Commander is responsible because of involvement in adopting such policies.
In Count Three, Plaintiff asserts a new, First and Fourteenth Amendment “right to read” claim, alleging that he had been denied the ability to read caselaw because it is not provided in the prison law library and deemed contraband if otherwise obtained. He argues actual injury based on inability to support litigation activities in other cases. Plaintiff argues Defendant Shinn is responsible for the adoption of the policies resulting in this denial.
3. Standard for Allowing Amendments
Federal Rule of Civil Procedure 15(a)(1) provides that “[a] party may amend its pleading once as a matter of course, ” provided it is timely, i.e. 21 days after a responsive pleading. That deadline expired on May 11, 2021. Accordingly, the instant amendment requires leave of the Court.
Federal Rule of Civil Procedure 15(a)(2) provides that the “court should freely give leave [to amend] when justice so requires.” “In assessing the propriety of a motion for leave to amend, we consider five factors: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004).
4. Application to Current Motion
a. Bad Faith, Previous Amendments
Defendants do not assert bad faith or repetitive amendments.
Here, there appears no basis to find bad faith.
In the context of a motion for leave to amend, “bad faith” means acting with intent to deceive, harass, mislead, delay, or disrupt. Cf.
Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir.2006); In re Ezzell, 438 B.R. 108, 117-18 (Bkrtcy.S.D.Tex.2010). As it has been defined in other contexts, “bad faith” means more than acting with bad judgment or negligence, but “rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity.... [I]t contemplates a state of mind affirmatively operating with furtive design or ill will.” United States v. Manchester Farming P'ship, 315 F.3d 1176, 1185 (9th Cir.2003).Wizards of the Coast LLC v. Cryptozoic Entm't LLC, 309 F.R.D. 645, 651 (W.D. Wash. 2015). Plaintiff appears to have no furtive design or ill will in amending. Rather, he appears to be attempting, in good faith, to corrective deficiencies revealed in the screening Order, and to add additional claims.
“Repeated failure to cure deficiencies by amendments previously allowed is another valid reason for a district court to deny a party leave to amend.” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809-10 (9th Cir. 1988) (emphasis added). Here, Plaintiff has not previously attempted to amend.
b. Undue Delay
Defendants argue Plaintiff had unduly delayed in filing his motion to amend, and they will be prejudiced. Defendants argue Plaintiff's motion is “dilatory” because most of the amendments were addressed in the screening order, thus Plaintiff has been on notice since that order (issued February 8, 2021) of his need to cure the defects in the original Complaint.
The Court set a deadline for motions to amend that expired on July 6, 2021. (Order 4/21/21, Doc. 18 at 3, ¶ 1.6.) Plaintiff's motion was filed on June 28, 2021. (Doc. 25.) Where the court has adopted a deadline for motions to amend as part of a pretrial or preliminary scheduling order, Rule 16(b), rather than Rule 15(a), is the primary control over the timeliness of an amendment sought after the court's deadline. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). On the other hand, where a motion to amend is filed before the deadline, the party remains subject to the undue delay standard under Rule 15(a). AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 952 (9th Cir. 2006). In other words, a party cannot simply run out the clock under the schedule and amend at the eleventh hour, without being at risk of engaging in “undue delay.” It is irrelevant in such instances whether the delay was because of “gamesmanship or the result of an oversight.” Id. at 954.
Here, Plaintiff's delay has been substantial. Plaintiff has delayed some four and a half months since the screening Order (Doc. 8), and over two months after the Scheduling Order (Doc. 18). The undersigned is cognizant that in many complex civil cases, a delay of a few months is often not significant. Cf. AmerisourceBergen, 465 F.3d at 953 (referencing delays of 8 months between obtaining facts and amendment as unreasonable). Here, however, this case is not complex, and has been established with a comparatively compact timeline, calling for service of all discovery requests by August 9, 2021, just 110 days after the Scheduling Order.
With regard to the timing of his motion, Plaintiff replies that: (1) he could not seek discovery about Defendant John/Jane Doe until after he amended; (2) there is still time until the expiration of deadlines under the Scheduling Order; (3) he is entitled to amend to cure deficiencies identified on screening; and (4) he was exhausting his administrative remedies.
The undersigned finds no justification in the interplay between discovery and amending with regard to the Doe defendant. To the contrary, this interplay (assuming Plaintiff is correct that he would have been thwarted in pre-amendment attempts to discovery this defendant's identity) would call for a prompt amendment. Nor does the undersigned find justification in the time left under the schedule. This conflates prejudice with justification for delay. Nor does the dismissal with leave to amend justify delay. If anything, where an amendment is prompted by such an order, a prompt amendment should be all the more expected. The plaintiff in such a situation is aware of the claim, the facts, and the deficiencies in the pleading.
Finally, Plaintiff claims he was exhausting his administrative remedies. He points to no particular claim for which such exhaustion was required, but alleges in Count Three of his proposed complaint that he initiated a grievance on his legal research claim on April 14, 2021. But that was over two months after the screening order. Moreover, Plaintiff alleges he has been in the custody of ADCRR since October 2020. He offers no explanation why he had not instituted a grievance previously. The delay in exhausting administrative remedies is no different from delays in undertaking investigations to support an amendment. While there is no court imposed timetable (ignoring the effect of the statute of limitations) applicable to grievances, the issue is Plaintiff's diligence with regard to amending in this case. (Indeed, Plaintiff is not barred by any denial of this motion to amend from seeking to assert such a claim in a new proceeding.) Plaintiff has not show that diligence. Accordingly, Plaintiff's delay has been undue.
But, “delay alone does not provide sufficient grounds for denying leave to amend: ‘Where there is lack of prejudice to the opposing party and the amended complaint is obviously not frivolous, or made as a dilatory maneuver in bad faith, it is an abuse of discretion to deny such a motion.'” Hurn v. Ret. Fund Tr. of Plumbing, Heating & Piping Indus. of S. California, 648 F.2d 1252, 1254 (9th Cir. 1981) (quoting Howey v. United States, 481 F.2d 1187, 1190-1191 (9th Cir. 1973)). Here, Defendants proffer no evidence of prejudice. See AmerisourceBergen, 465 F.3d at 953 (finding prejudice where delay had resulted “potentially high, additional litigation costs…that could have easily been avoided”); Jackson v. Bank of Hawaii, 902 F.2d 1385 (9th Cir. 1990) (finding prejudice where the matter had been extensively litigated, with several trial dates set, and the claims to be added would modify the nature of the suit so as to require reopening of a declaratory judgment action between the defendants and their insurers, and incur costs in retaking discovery on the new issues). Defendants offer nothing to show any substantial detriment from Plaintiff's amendments that could have been avoided with an earlier amendment. Indeed, based on the notices on the docket, Defendants have served no discovery on Plaintiff, and have not yet deposed Plaintiff. At most, they have responded to Plaintiff's discovery requests. (Doc. 24).
c. Futility
“Futility alone can justify the denial of a motion for leave to amend.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). AWhere the legal basis for a cause of action is tenuous, futility supports the refusal to grant leave to amend.@ Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999). The proper test to be applied to determining futility is that applied in deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6). See Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (citing 3 J. Moore, Moore's Federal Practice ¶ 15.08[4] (2d ed. 1974).
Defendants rely on a “no-set-of-facts” standard, quoting Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1392-1393 (9th Cir. 1997). However, the Supreme Court has observed that it's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), “retired the…no-set-of-facts test.” Ashcroft v. Iqbal, 556 U.S. 662, 670 (2009). Indeed, Twombly asserted that under such a test “a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some “set of [undisclosed] facts” to support recovery.” 550 U.S. at 561. “The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 563. Thus, the only proper application of this test is when a dismissal for failure to state a claim, or a denial of leave to amend for futility, is to be made with prejudice to the claim ever being again asserted. See e.g. Barahona v. Union Pac. R.R. Co., 881 F.3d 1122, 1134 (9th Cir. 2018) (applying the “no-set-of-facts” standard to dismissal coupled with denial of leave to amend); and Nordyke v. King, 644 F.3d 776, 789 (9th Cir. 2011), on reh'g en banc, 681 F.3d 1041 (9th Cir. 2012) (denial of leave to amend with prejudice appropriate only if claim “could not be saved by amendment”). See also J. Moore, Effect of Granting Rule 12 Motion, 2 Moore's Federal Practice - Civil § 12.51 (2021), at text surrounding notes 3-4. Because the undersigned sees no basis for dismissing with prejudice, this standard is not applied.
In evaluating factual sufficiency in the context of a 12(b)(6) motion, the courts look to the applicable pleading standard. A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the -defendant- unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Rather, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “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. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant's conduct. Id. at 681.
“The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Iqbal, 556 U.S. at 678. At the same time, reasonable inferences can be drawn from the facts alleged. “Iqbal demands more of plaintiffs than bare notice pleading, but it does not require us to flyspeck complaints looking for any gap in the facts.” Lacey v. Maricopa County, 693 F.3d 896, 924 (9th Cir. 2012).
Despite these pleading requirements, the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). The liberal construction rule requires the Court to read a filing as asserting legal theories suggested by the facts alleged, Cynthia Gray, Reaching Out or Overreaching: Judicial Ethics and Self-Represented Litigants, 27 J. Nat'l Ass'n Admin. L. Judiciary 97, 124-125 (2007), while at the same time not assuming the role of an advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), to not dispose of a filing based on its “inartfulness” (e.g. failure to comply with conventions of style, grammar, or formatting), Estelle v. Gamble, 429 U.S. 97, 106 (1976), and to not, as a matter of course, place reliance on the petitioner's division of his factual allegations among various claims or grounds for relief, but instead to ““look[] to the entire petition” Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001), as amended (June 5, 2001). Liberal construction does not, however, require the Court to construct factual allegations . A “liberal interpretation of a civil rights complaint may not supply essential elements of the claim.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
For the reasons expressed hereinafter in screening the proposed complaint, the undersigned concludes that the amendment is not wholly futile. Rather, it adequately alleges new, individual capacity claims against Defendants Shinn and Stolc in Count One.
5. Amendment Permitted
No reason appearing for a contrary conclusion, leave to amend will be granted.
D. SCREENING OF AMENDED COMPLAINT
1. Screening Required
In cases filed by persons appearing in forma pauperis the court is required by 28 U.S.C. § 1915(e)(2) to dismiss cases that are frivolous, malicious, fail to adequately state a claim, or seek monetary relief from a defendant who is immune. Further, 28 U.S.C. § 1915A requires the Court to actively screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. The Court must dismiss a complaint or portion thereof if the Plaintiff 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. § 1915A(b)(1)-(2). 42 U.S.C. § 1997e(c) applies the same standard to such complaints by prisoners/detainees even if the defendants are not governmental entities, or officers or employees of a governmental entity.
Defendants proffer nothing to show that Plaintiff's claims are frivolous or malicious. The undersigned addresses hereinafter Plaintiff's success at adequately stating a claim, and any applicable immunity from monetary relief.
In evaluating the adequacy of a claim, the pleading standards applicable on screening are those reviewed hereinabove with regard to futility of amendment.
2. Count One - Phones
a. Individual Capacity
In screening the original Complaint, the Court found insufficient facts for individual capacity liability.
Plaintiff's allegations fail to plausibly show that any Defendant was personally involved in the deprivation of his civil rights, but rather their involvement stems solely from their roles as the heads of the entities they oversee.(Order 2/28/21, Doc. 6 at 7.) Plaintiff now attempts to cure that deficiency primarily by alleging that various defendants were involved in his personal deprivations as a result of not only their institution of the relevant policies, but because of the rejection of his grievances over these issues.
Defendants argue, without explanation, that denial of a grievance is not enough. To the contrary, while the denial of a grievance over a fait accompli may not establish the requisite personal involvement, a denial of grievance about a continuing violation can. Henderson v. Muniz, 196 F.Supp.3d 1092, 1104 (N.D. Cal. 2016). Here, each of Plaintiff's claims allege ongoing violations, e.g. restricted calls, restricted access to photos for litigation, and restricted access to legal research. Consequently, he seeks not only monetary relief, but injunctive relief as well.
These individual defendants are not subject to Eleventh Amendment immunity for claims against them in their individual capacities. Mitchell v. Washington, 818 F.3d 436, dismissed.
b. Defendant Doe
Plaintiff adds Defendant Doe, but alleges only that Doe was involved in the institution of the complained of policies. That is not sufficient to maintain an individual capacity claim against Doe. Moreover, as with former defendants Fizer and Degard, the official capacity claim against Doe is duplicative. Accordingly, Plaintiff fails to adequately state a claim against Doe, and Doe must be dismissed.
c. Fourteenth Amendment Claims
In screening Count One of the original Complaint, the Court found Plaintiff adequately stated a First Amendment claim regarding the phone restrictions. The Court concluded, however, that the Fourteenth Amendment claim was governed by the more specific principles under the First Amendment, and thus did not adequately state a separate claim. See Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 855 (9th Cir. 2007) (“[I]f a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” (quoting County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998))).
With regard to any attempted equal protection claim, the Court found on screening that that Plaintiff failed to allege he was a member of a protected class, and that first-time or repeat offenders were not a protected class. In addition, the Court found Plaintiff failed to provide sufficient allegations to make out a class-of-one claim.
Plaintiff's motion points to no portion of his amendment intended to cure these deficiencies. The undersigned finds none. Plaintiff does argue in his Reply that he “did state he is a member of a protected class, ” citing his criminal history. But as noted in the Screening Order, criminal history does not delineate a protected class.
These claims must again be dismissed for failure to state a claim.
d. First Amendment Claim
The Court found Count One adequately stated First Amendment claims against Shinn and Stolc. The undersigned concludes Plaintiff continues to do, and does so both with respect to Defendants in their official capacity and in their individual capacities.
3. Count Two - Photos
In rejecting Count Two of the original Complaint, the Court analyzed the claim as a First and Fourteenth Amendment claim for denial of access to the Courts. The claim was dismissed as inadequate because Plaintiff had failed to allege an actual injury.
Plaintiff argues this is now a “mail” claim. He had deleted his assertion in the original Complaint that it is an “access to the court” claim. Despite Plaintiff's assertions that this will eventually result in a Sixth Amendment violation, the undersigned honors Plaintiff's explicit selection, and does not consider whether Plaintiff has adequately alleged an access to the court claim.
a. First Amendment Mail Claim
As Defendants acknowledge, inmates have a First Amendment right to “send and receive mail, ” subject to “substantial limitations and restrictions in order to allow prison officials to achieve legitimate correctional goals and maintain security.” Burciaga v. California Dep't of Corr. & Rehab., 2019 WL 8634165, at *4 (C.D. Cal. Sept. 5, 2019) (citing Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005)). Defendants argue that Plaintiff fails to make out such a claim because: (a) he does not allege he received the photos in the mail, or that he was denied receipt of any mail; (b) Plaintiff admits access to the photos; (c) he makes only conclusory allegations of arbitrary or irrational application of the prison policies or compliance with them. Defendants further argue Plaintiff effectively alleges legitimate penological goals for denying him possession.
Plaintiff argues in reply that he received the photos via the mail, but admits it was while he was incarcerated in the Maricopa County Jail. But Plaintiff proffers nothing to show that material forever retains its status as protected “mail.” The protected right in this arena is not a right to retain mail, but a right to communicate. See Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). It “is grounded in the First Amendment's guarantee of freedom of speech.” Procunier v. Martinez, 416 U.S. 396, 408 (1974), overruled by Thornburgh, 490 U.S. 401. Here, the communication has transpired, insofar as Plaintiff has had past (and continuing) access to the materials.
Plaintiff does allege that his inability to possess the materials poses challenges if he desires to forward copies of them, e.g. for inclusion in legal filings. But he posits nothing to show that he has attempted and been unable to do so. In his Reply, he simply complains that “there is no established process to submit these photos into any of Plaintiff's pleadings.” (Reply, Doc. 28 at 6.) Plaintiff's personal lack of clarity on how to accomplish protected communication does not adequately allege Defendants' denial of protected communication.
b. Due Process Claim
Plaintiff alleges the photos policy is “overbroad, irrational & is arbitrarily imposed.” But any such claim is governed by the more specific principles under the First Amendment, and thus did not adequately state a separate claim. See Crown Point, 506 F.3d at 855.
c. Conclusion
Count Two fails to adequately state a claim and must be dismissed.
4. Count Three - Right to Read
Plaintiff asserts a new claim in Count Three that he is being denied his First Amendment “right to read, ” as a result of the prison's failure to provide him access to case law. He also alleges this is a denial of due process under the Fourteenth Amendment.
a. Right to Read
Defendants argue there is no “right to read.” Plaintiff proffers no authority to support such a claim.
The Supreme Court has held that prisoners have limited rights to read various materials. But that has been addressed in the context of their right to receive such materials from outside the prison, e.g. through the mail. See e.g. Thornburgh v. Abbott, 490 U.S. 401 (1989) (authorizing some prison limitations on right to receive publications); and Beard v. Banks, 548 U.S. 521 (2006) (same). But here, Plaintiff's complaint is not that he can't receive such materials, but that they are not provided by the prison. However far Plaintiff's “right to read” may extend, it does not amount to a requirement for the prison to supply the reading materials.
Plaintiff does allege he has been told by “'RRCC' staff” that all caselaw is considered contraband. But Plaintiff does not allege he has been told that by a defendant, or that any defendant in this action has approved of such a statement or policy, either directly or through denying a grievance on that basis. At most he asserts that Defendant Shinn has ultimate responsibility over policies and grievance appeals. But Plaintiff fails to point to a policy or grievance appeal prohibiting him from obtaining caselaw on his own. He references ADCRR's DO 914, the prison's inmate mail policy. But he points to no portion of that policy prohibiting an inmate from acquiring caselaw through the mail. To the contrary, that policy provides a specific exemption for legal material such as caselaw from the censoring applicable to other publications:
6.18 A legal publication that contains unauthorized content that is either (a) directly quoted from a trial or appellate court's decision, opinion, or order, or (b) otherwise taken from a court case, government publication, or news wire service (such as the Associated Press), shall not be withheld if the unauthorized content is reasonably necessary to understand the fundamental legal issue or legal principle of the legal publication.ADCRR Department Order 914, ¶ 6.18, available at https://corrections.az.gov/sites/ default/files/policies/900/0914.pdf, last accessed 8/2/21. Moreover, that provision relates to publications coming directly from a publisher. It would appear to have no relationship to Plaintiff's acquisition of copies of specific caselaw obtained for or by him, e.g. sent by a relative, or obtained from a county law library.
Plaintiff fails to adequately allege a “right to read” claim.
b. Right of Access
Although the Plaintiff appears to be making a conscious choice not allege a claim of access to the Courts, Defendants argue that such a claim is not adequately stated. In reply, Plaintiff does not argue such a claim is being mounted, but argues that he is being impeded in prosecuting his ongoing cases. As with Count Two, the undersigned is inclined to honor Plaintiff's strategic choice to not assert an access to the courts claim. But here, unlike with Count Two, his election to NOT raise an access claim (e.g. by deleting it) is not as clear.
Even so, while a right to be provided caselaw (or other legal materials) might arise under Plaintiff' right of access to the Courts, it is only as part of his right to limited assistance (whether by provision of access to a law library, a paralegal, or other forms of legal assistance) in challenging his confinement and the conditions of his confinement. Lewis v. Casey, 518 U.S. 343, 350 (1996). But as noted by the Court in screening the right of access claim in Count Two of the original Complaint, maintaining such a claim requires a showing of “actual prejudice.”
Plaintiff fails to allege facts to show that he has been actually injured or that it occurred in his pursuit of challenges to his conviction or the conditions of his confinement. He alleges that he has been frustrated in pursuing litigation he began while a county detainee, and in pursuing a motion to amend and to research experts in a pending suit. But he fails to allege that such litigation was directed to challenging his conviction or conditions of confinement. Moreover, with regard to the amendment, he alleges he was “was not allowed to do research to raise a fact-based argument instead of merely conclusory arguments.” But facts are not discovered by legal research; at most, the legal relevance of facts may be discovered from such research. Moreover, actual injury would not occur until the claims were dismissed with prejudice, which Plaintiff does not allege. And the reasoning for a dismissal without prejudice would have provided Plaintiff notice of the relevant facts.
Plaintiff's vague and conclusory allegations are insufficient to state a claim that he has suffered actual harm in pursuing protected litigation.
c. Conclusion re Count Three
Plaintiff fails to adequately state a claim in Count Three and it must be dismissed.
5. Conclusions
Plaintiff fails to adequately state claims in Counts Two and Three, and fails to adequately state a claim against Defendant Doe. They must be dismissed without prejudice.
E. SERVICE
Under the recommendation herein, only previously appearing Defendants Shinn and Stolc need to respond to the First Amended Complaint. Accordingly, no recommendation is made as to additional service.
F. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”
G. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED:
(A) Plaintiffs Motion to Amend (Doc. 25) be GRANTED.
(B) Plaintiffs First Amended Complaint (lodged as Attachment 3 to the Motion to Amend, Doc. 25-2 at 2-17) be FILED.
(C) Defendant Doe be DISMISSED from the First Amended Complaint WITHOUT PREJUDICE
(D) Counts Two and Three of the First Amended Complaint be DISMISSED WITHOUT PREJUDICE
(E) Defendants Shinn and Stolc be required to respond to the First Amendment claim in Count One of the First Amended Complaint, in their individual and official capacities.