Ali Kane v. Carmack, et al.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 ALI KANE, Case No. 2:25-cv-01972-DGE-TLF 7 Plaintiff, v. REPORT AND 8 RECOMMENDATION CARMACK, et al., 9 Noted for May 28, 2026 Defendants. 10

11 Plaintiff, Ali Kane, a prisoner currently confined at Washington State Penitentiary, 12 proceeds pro se and in forma pauperis in this 42 U.S.C. § 1983 civil rights action. This 13 matter is before the Court on defendants’ motion to dismiss. Dkt. 18. This matter has 14 been referred to the undersigned Magistrate Judge. Mathews, Sec’y of H.E.W. v. 15 Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4. 16 For the reasons set forth below, the undersigned recommends that the Court 17 grant defendants’ motion (Dkt. 18) and dismiss plaintiff’s claims without prejudice. 18 FACTUAL BACKGROUND 19 Plaintiff names the following defendants: Carmack, Monroe Correctional 20 Complex Intensive Management Unit (IMU/MCC) Law Librarian; David Pauli, IMU Law 21 Librarian Supervisor; Pete Maxson, IMU Law Librarian Supervisor. Dkt. 8. Plaintiff 22 alleges defendants violated his First and Fourteenth Amendment rights to access the 23 courts by failing or refusing to timely collect and e-file his court documents in a case 24 1 filed in the United States District Court for the Eastern District of Washington under case 2 number 23-cv-00204-TOR. Id. Plaintiff alleges defendants’ refusal resulted in his 3 missing a September 17, 2025, deadline for filing in that case which resulted in the court 4 dismissing his case without prejudice. Id.; see Kane v. Chlarson, No. 23-cv-00204-TOR,

5 Dkts. 104, 111, (E.D. Wash.). 6 A review of the docket in Kane v. Chlarson, No. 23-cv-00204-TOR, and Kane v. 7 Chlarson, 25-6271 (9th Cir.) reflects that plaintiff has appealed the dismissal of his case 8 and that his appeal is still pending. See, Kane v. Chlarson, No. 23-cv-00204-TOR, Dkt. 9 115; Kane v. Chlarson, 25-6271 (9th Cir.).1 10 As relief, plaintiff seeks $500,000 in damages from defendants. Dkt. 8. 11 DISCUSSION 12 The Court’s review of a motion to dismiss under Federal Rule of Civil Procedure 13 (FRCP) 12(b)(6) is limited to the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 14 688 (9th Cir. 2001). The Court held in Ashcroft v. Iqbal, 680 U.S. 662, 678 (2009):

15 “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on 16 its face” must be contained in the complaint in order to survive a motion to dismiss 17 under FRCP 12(b)(6). A pro se complaint must be liberally construed. Mangiaracina v. 18 Penzone, 849 F.3d 1191, 1195 (9th Cir. 2017). All material factual allegations in the 19 20

21 1 The Court takes judicial notice of the dockets in Kane v. Chlarson, No. 23-cv-00204-TOR and Kane v. Chlarson, 25-6271 (9th Cir.). See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th 22 Cir. 2002) (“[a] court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment.”) (internal quotation marks and citation 23 omitted); Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (same). 24 1 complaint “are taken as admitted,” and the complaint is to be liberally “construed in the 2 light most favorable” to the plaintiff. Id.; Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 3 “Under the First and Fourteenth Amendments to the Constitution, state prisoners 4 have a right of access to the courts.” Phillips v. Hust, 477 F.3d 1070, 1075 (9th

5 Cir.2007) (citing Lewis v. Casey, 518 U.S. 343, 346, 116 S.Ct. 2174, 135 L.Ed.2d 606 6 (1996)), vacated on other grounds by Hust v. Phillips, 555 U.S. 1150, 129 S.Ct. 1036, 7 173 L.Ed.2d 466 (2009). “[A]ccess to the courts means the opportunity to prepare, serve 8 and file whatever pleadings or other documents are necessary or appropriate in order to 9 commence or prosecute court proceedings affecting one’s personal liberty.” Id. at 1075– 10 76 (internal quotation and citation omitted). 11 Backward-looking access to courts claims, as presented here, involve the lost 12 opportunity to litigate a specific case, “no matter what official action [is taken] in the 13 future.” Christopher v. Harbury, 536 U.S. 403, 413–14, 122 S.Ct. 2179, 153 L.Ed.2d 413 14 (2002). “Like any other element of an access claim, the underlying cause of action and

15 its lost remedy must be addressed by allegations in the complaint sufficient to give fair 16 notice to a defendant.” Id. at 416. 17 Plaintiff's cause of action is a backward-looking claim in that he argues 18 defendants' actions and policies preventing him from timely filing documents in 19 accordance with the Court’s deadlines in his action resulting in dismissal of the action 20 without prejudice for failure to prosecute. 21 There are three elements required to state a backward-looking denial of access 22 claim: “1) the loss of a ‘nonfrivolous' or ‘arguable’ underlying claim; 2) the official acts 23 frustrating the litigation; and 3) a remedy that may be awarded as recompense but that

24 1 is not otherwise available in a future suit.” Phillips, 477 F.3d at 1076 (citing Christopher, 2 536 U.S. at 413–14). 3 With respect to the first element, plaintiff must show they suffered an “actual 4 injury” by being “shut out of court.” Christopher, 536 U.S. at 415; Lewis, 518 U.S. at

5 351; Phillips, 477 F.3d at 1076. With respect to the second element, plaintiff must show 6 that a defendant “proximately caused” the alleged violation of his rights. Phillips, 477 7 F.3d at 1077. And as to the third element plaintiff must show they have “no other 8 remedy than the relief available in [the] denial of access suit.” Id. at 1078–79. 9 Defendants argue, in part, that plaintiff’s claims are premature as they appealed 10 the dismissal of the action in the Eastern District of Washington case, and that appeal 11 remains pending in the Ninth Circuit. Dkt. 18. 12 Plaintiff successfully filed his complaint in the Eastern District of Washington 13 action, and, although the Court dismissed plaintiff's claims raised in that action without 14 prejudice due to his failure to meet a deadline, plaintiff has appealed the dismissal.

15 Because the appeal remains pending, plaintiff fails to show he has sustained an “actual 16 injury” at this stage because he was “shut out of court.” See Christopher, 536 U.S. at 17 415; Lewis, 518 U.S. at 351. Polk v. Cavin, No. C 08-1483 MMC PR, 2012 WL 18 1893529, at *4 (N.D. Cal. May 23, 2012), aff'd, 671 F. App'x 483 (9th Cir. 2016) 19 (“Although this Court originally dismissed plaintiff's claims against County defendants as 20 time-barred, the Ninth Circuit, as noted above, reversed and remanded for further 21 proceedings on those claims. Because plaintiff's lawsuit against County defendants 22 remains pending, she has sustained no ‘actual injury’ as a result of being ‘shut out of 23 court.’ See Christopher, 536 U.S. at 415; Lewis, 518 U.S. at 351”). For the same

24 1 reasons, plaintiff cannot show defendants proximately caused any injury. See id.; 2 Phillips, 477 F.3d at 1077. And, because his appeal of the dismissal in the Eastern 3 District of Washington action is pending, plaintiff fails to show he has no remedy other 4 than the relief available on his denial of access claim. See id.; Phillips, 477 F.3d at

5 1078–79. 6 Although, plaintiff’s appeal may be denied, at this stage of the proceedings, his 7 denial of access claim is premature. If plaintiff succeeds on his appeal, and the Ninth 8 Circuit Court of Appeals orders the District Court’s decision reversed and remanded to 9 proceed, he will not have suffered any cognizable injury that the Court can discern, nor 10 does he identify any injury he would suffer in this circumstance. See Polk, 2012 WL 11 1893529, at *4 (finding although plaintiff’s claims were initially dismissed, the dismissal 12 was reversed on appeal and the claims proceeded, thus plaintiff had sustained no 13 actual injury as a result of being shut out of court). 14 “Premature claims for denial of access to the courts are subject to dismissal

15 without prejudice.” See Polk, 2012 WL 1893529, at *4; Delew v. Wagner, 143 F.3d 16 1219, 1222–23 (9th Cir.1998); see, e.g., Kari–Panahi v. Los Angeles Police Dep't., 839 17 F.2d 621, 625 (9th Cir.1988) (finding dismissing without prejudice appropriate remedy 18 where plaintiff's allegations would be mooted if he were to succeed on claims that 19 remained pending). 20 Accordingly, plaintiff's claims should be dismissed without prejudice as 21 premature. 22 Defendants also move for dismissal based on qualified immunity. When 23 defendants assert qualified immunity in a motion to dismiss under Fed. R. Civ. P.

24 1 12(b)(6), “‘dismissal is not appropriate unless [the Court] can determine, based on the 2 complaint itself, that qualified immunity applies.’” O’Brien v. Welty, 818 F.3d 920, 936 3 (9th Cir. 2016) (quoting Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001)). 4 In determining whether an official is entitled to qualified immunity, a court must

5 determine whether, reading the allegations in the light most favorable to plaintiff: (1) 6 defendant’s conduct violated a constitutional right; and (2) the right was clearly 7 established. Saucier v. Katz, 533 U.S. 194, 201 (2001). A Court may address the steps 8 of the qualified immunity analysis in whichever order it finds most expedient. Pearson v. 9 Callahan, 555 U.S. 223, 236 (2009). 10 The second step of the qualified immunity analysis provides that defendants are 11 entitled to qualified immunity if their conduct “does not violate clearly established 12 statutory or constitutional rights of which a reasonable person would have known.” 13 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Plaintiff bears the burden of proving that 14 the right allegedly violated was clearly established at the time of the violation; if the

15 plaintiff meets this burden, then the defendant bears the burden of establishing that the 16 defendant reasonably believed the alleged conduct was lawful. See Sorrels v. McKee, 17 290 F.3d 965, 969 (9th Cir. 2002); Trevino v. Gates, 99 F.3d 911, 916-17 (9th Cir. 18 1996); Browning v. Vernon, 44 F.3d 818, 822 (9th Cir. 1995); Neely v. Feinstein, 50 19 F.3d 1502, 1509 (9th Cir. 1995), overruled in part on other grounds by L.W. v. Grubbs, 20 92 F.3d 894 (9th Cir. 1996); see also Clairmont v. Sound Mental Health, 632 F.3d 1091, 21 1109 (9th Cir. 2011) (“The plaintiff bears the burden to show that the contours of the 22 right were clearly established.”). 23

24 1 Here, plaintiff cites to no clearly established law, nor is the Court aware of any, 2 holding that law library staff violate plaintiff’s constitutional right to access to the courts 3 where plaintiff’s underlying claim is dismissed without prejudice by the District Court, 4 and plaintiff’s appeal of that dismissal remains pending in the Court of Appeals.

5 Accordingly, plaintiff’s claims are also subject to dismissal without prejudice on 6 this basis as well. 2 7 CONCLUSION 8 Based on the foregoing discussion, the undersigned recommends that the Court 9 GRANT defendants’ motion to dismiss (Dkt. 18) and that plaintiff’s claims be dismissed 10 without prejudice. A proposed order and proposed judgment are attached. 11 Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall 12 have fourteen (14) days from service of this report to file written objections. See also 13 Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for 14 purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can

15 result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 16 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations 17 omitted). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the Clerk is 18 directed to set the matter for consideration on May 28, 2026, as noted in the caption. 19 Dated this 13th day of May, 2026. 20 A 21 Theresa L. Fricke 22 United States Magistrate Judge 23 2 Because the Court finds dismissal of the action is appropriate on this basis, it does not reach 24 defendants other arguments.