(PC) Reid v. Barba

• Court: District Court, E.D. California
• Decided: January 3, 2024
• Docket: 1:22-cv-00344
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLTON REID, Case No. 1:22-cv-00344-HBK (PC) 12 Plaintiff, SCREENING ORDER DIRECTING PLAINTIFF TO STAND ON THE 13 v. COMPLAINT AND VOLUNTARILY DISMISS CLAIMS DEEMED NOT 14 JASON BARBA, COGNIZABLE; OR, 15 Defendant. STAND ON COMPLAINT SUBJECT TO COURT RECOMMENDING DISMISSAL OF 16 CLAIMS DEEMED NOT COGNIZABLE TO THE DISTRICT COURT1 17 (Doc. No. 8) 18 FEBRUARY 19, 2024 DEADLINE 19 20 Pending before the Court for screening under 28 U.S.C. § 1915A is the first amended pro 21 se civil rights complaint filed under 42 U.S.C. § 1983 by Carlton Reid—a prisoner. (Doc. No. 8, 22 “FAC”). Upon review, the Court finds the FAC states a First Amendment access to courts claim 23 against Defendant Jason Barba, but fails to state any other cognizable claims. The Court affords 24 Plaintiff the option to file a notice to proceed only on his claim deemed cognizable or stand on his 25 FAC subject to the Court recommending the district court dismiss any remaining claims not 26 deemed cognizable. 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 SCREENING REQUIREMENT 2 A plaintiff who commences an action while in prison is subject to the Prison Litigation 3 Reform Act (“PLRA”), which requires, inter alia, the court to screen a complaint that seeks relief 4 against a governmental entity, its officers, or its employees before directing service upon any 5 defendant. 28 U.S.C. § 1915A. This requires the court to identify any cognizable claims and 6 dismiss the complaint, or any portion, if is frivolous or malicious, if it fails to state a claim upon 7 which relief may be granted, or if it seeks monetary relief from a defendant who is immune from 8 such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 9 At the screening stage, the court accepts the factual allegations in the complaint as true, 10 construes the complaint liberally, and resolves all doubts in the plaintiff’s favor. Jenkins v. 11 McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 12 2003). A court does not have to accept as true conclusory allegations, unreasonable inferences, or 13 unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 14 1981). Critical to evaluating a constitutional claim is whether it has an arguable legal and factual 15 basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). 16 The Federal Rules of Civil Procedure require only that a complaint include “a short and 17 plain statement of the claim showing the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). 18 Nonetheless, a claim must be facially plausible to survive screening. This requires sufficient 19 factual detail to allow the court to reasonably infer that each named defendant is liable for the 20 misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Moss v. U.S. Secret Service, 21 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not 22 sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. 23 Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Although detailed factual allegations are not 24 required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 25 statements, do not suffice,” Iqbal, 556 U.S. at 678 (citations omitted), and courts “are not required 26 to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 27 2009) (internal quotation marks and citation omitted). 28 If an otherwise deficient pleading can be remedied by alleging other facts, a pro se litigant 1 is entitled to an opportunity to amend their complaint before dismissal of the action. See Lopez v. 2 Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Department of Corr., 66 F.3d 3 245, 248 (9th Cir. 1995). However, it is not the role of the court to advise a pro se litigant on 4 how to cure the defects. Such advice “would undermine district judges’ role as impartial 5 decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 6 n.13. Furthermore, the court in its discretion may deny leave to amend due to “undue delay, bad 7 faith or dilatory motive of the part of the movant, [or] repeated failure to cure deficiencies by 8 amendments previously allowed . . . .” Carvalho v. Equifax Info. Srvs., LLC, 629 F.3d 876, 892 9 (9th Cir. 2010). 10 SUMMARY OF THE OPERATIVE COMPLAINT 11 The events giving rise to Plaintiff’s FAC took place at California Substance Abuse 12 Treatment Facility (“SATF”) in Corcoran, CA. (See generally Doc. No. 8). The FAC names as 13 the sole Defendant Correctional Counselor Jason Barba. (Id. at 3). The FAC consists of 49 14 pages, of which 31 pages are exhibits. (See id. at 17-48). The following facts are presumed true 15 at this stage of the proceedings. 16 On or about July 30, 2020, the Sacramento County Superior Court granted Plaintiff’s 17 motion for discovery materials from the Sacramento County District Attorney’s Office (“DAO”), 18 in connection with Plaintiff’s state habeas corpus petition. (Id. at 4). The Court ordered in 19 pertinent part: 20 It is further ordered that the Department of Corrections and Rehabilitation accept delivery of the discovery materials so sent to 21 defendant at defendant’s current place of housing, which at the time of the filing of the instant motion was Substance Abuse Treatment 22 Facility and State Prison, Corcoran, both of the first such sending as well as any future sendings; that the authorities at that prison provide 23 for the indefinite storage of those materials; and that the authorities at that prison, and any other prison to which defendant may be 24 transferred in the future, provide reasonable access to defendant to those materials. 25 (Id. at 12, 18). 26 On or about July 30, 2020, the DAO sent a USB2 drive to SATF containing the requested 27

28 2 A Universal Serial Bus (“USB”) drive is commonly used for storage, data backup, and to transfer files 1 discovery materials. (Id. at 4). Plaintiff did not receive the mailing. (Id. at 5). Plaintiff instead 2 received another mailing from the DAO on or about September 18, 2020, which contained printed 3 discovery materials, and a letter which referenced the office’s earlier attempt to send Plaintiff the 4 USB drive. (Id. at 4-5). 5 In late September 2020, Plaintiff submitted an inmate request form to the litigation office 6 at SATF, inquiring why the USB drive was not delivered to him and why he received no notice of 7 the mail being received or rejected. (Id. at 5, 7). On or about October 2, 2020, Defendant Barba 8 responded, “Sac DA did send Flash Drive. They are not allowed. They were notified and copied 9 all documents to paper then mailed you the documents on paper. Which you received.” (Id. at 7). 10 Based on Barba’s response, Plaintiff inferred that Barba had reviewed the contents of the 11 USB drive and compared it to the paper materials later sent to Plaintiff. (Id. at 7-8). On an 12 unspecified date, Plaintiff filed a grievance based on this information, which Defendant Smith 13 denied on December 5, 2020, stating inter alia that the SATF mailroom never received a USB 14 drive sent for him. (Id.). Plaintiff appealed the denial, and the appeal was approved, finding the 15 initial institutional response insufficient and that the office of grievances would have to issue 16 another response. (Id. at 8). On May 19, 2021, the grievance was denied a second time, noting 17 that Barba learned from the DAO that a USB drive was sent to SATF, but the mailroom staff had 18 no record that it was ever received. (Id. at 8-9). On May 28, 2021, Plaintiff appealed again and 19 on August 7, 2021, Defendant Moseley denied the appeal. (Id. at 9). 20 In a separate incident, on December 23, 2020, two correctional staff came to Plaintiff’s 21 cell with legal mail that was already partly open. (Id. at 8). The correctional staff told Plaintiff it 22 was open when they received it. (Id.). Plaintiff later filed a grievance regarding this issue. (Id.).3 23 In a third incident, on July 8, 2021, Plaintiff learned from two correctional officers that the 24 litigation department may have returned two CDs4 of discovery materials to the DAO after 25 Plaintiff had reviewed their contents. (Id. at 9). Plaintiff sent a request form to the litigation 26 between devices. 27 3 While Plaintiff’s original Complaint asserted two First Amendment claims based on the December 23, 2020 legal mail incident, the FAC does not contain any claims arising from this incident. 28 4 A Compact Disc (“CD”) is a molded disc containing digital data. 1 department asking to confirm this information. (Id. at 9-10). Defendant Barba responded, “Yes, 2 all disks were sent back to Sac. Co. D.A. Agreement was made to send all disks back after you 3 were given time to review.” (Id. at 10). On July 27, 2021, Plaintiff sent a request to the litigation 4 department asking them to retrieve the CDs and stating that any agreement made without his 5 involvement regarding the disposition of the discs was improper because the CDs were his 6 property. (Id.). On July 30, 2021, Defendant Barba responded that Plaintiff would have to 7 contact the DAO directly to retrieve the CDs because “[a]ll discovery (CD’s) have been returned 8 per instructions.” (Id.). On an unspecified date, Plaintiff filed a grievance regarding the 9 disposition of the CDs. (Id.). The office of grievances denied Plaintiff’s grievance, and 10 Plaintiff’s appeal was denied. (Id.). 11 Plaintiff alleges Defendant Barba’s actions during this time prevented Plaintiff from 12 effectively pursuing both his federal and state habeas petitions. (Id. at 10-14). In support, 13 Plaintiff states he filed a federal writ for habeas corpus in June 2020. (Id.). The USB drive sent 14 by the Sacramento County DA’s office contained discovery materials related to issues in 15 Plaintiff’s petition, and Plaintiff never received those materials in any form. (Id.). Plaintiff 16 sought multiple extensions of time to file materials supporting the claims asserted in his federal 17 petition, but ultimately his petition was denied with leave to amend on May 13, 2021. (Id. at 11). 18 Plaintiff’s claims his unsuccessful petition is due to “(1) the failure of J. Barba to follow CDCR 19 policy and allow [Plaintiff’s] legal mail to be opened in front of [him], (2) at the very least 20 notifying [Plaintiff] of its arrival, and (3) communicating with the District Attorney’s Office on 21 [Plaintiff’s] behalf without [his] permission or knowledge.” (Id. at 10). 22 On January 6, 2022, Plaintiff filed a petition for writ of habeas corpus in state court 23 challenging his conviction “with new and newly presented evidence along with other issues. 24 Some of those issues would have been discovered more than a year prior to that filing absent J. 25 Barba’s interference.” (Id. at 12). Specifically, one of the CDs returned by the SATF litigation 26 department to the Sacramento County DA’s office in July 2021 contained materials in support of 27 Plaintiff’s chain of custody and tampering claims raised in his state habeas petition. (Id. at 13). 28 On March 8, 2022, Plaintiff’s state habeas petition was denied due to lack of evidentiary support. 1 (Id.). 2 Based on the facts above, the FAC alleges the following claims against Defendant Barba: 3 (1) First Amendment retaliation, based on Barba’s return of the discovery materials to the 4 Sacramento County DA’s office; (2) a First Amendment claim in connection with the opening of 5 Plaintiff’s legal mail outside of Plaintiff’s presence; and (3) First Amendment and Fourteenth 6 Amendment access to courts, based on Barba’s actions that interfered with Plaintiff’s ability to 7 pursue his habeas petitions. (Id. at 14-15) 8 As relief, the FAC seeks an injunction: (1) prohibiting SATF staff from opening 9 Plaintiff’s confidential mail outside his presence, (2) prohibiting Defendant Barba from handling 10 Plaintiff’s legal mail or communicating with anyone regarding Plaintiff’s legal matters, and (3) 11 preventing “the institution” interfering with Plaintiff’s efforts to present the evidence in support 12 of his habeas petitions. (Id. at 15). Plaintiff also seeks $100,000 in compensatory damages and 13 $250,000 in punitive damages. (Id. at 15-16). 14 APPLICABLE LAW AND ANALYSIS 15 A. Rule 8 16 The Federal Rules of Civil Procedure require only that the complaint contain “a short and 17 plain statement of the claim showing the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). 18 Rule 8 states that “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). 19 To ensure compliance with Rule 8, courts in the Eastern District of California generally limit 20 complaints to twenty-five pages. See Lal v. United States, 2022 WL 37019, at *2 (E.D. Cal. Jan. 21 3, 2022); Williams v. Corcoran State Prison, 2022 WL 1093976, at *1 (E.D. Cal. Apr. 12, 2022). 22 The page limit includes the complaint itself and any exhibits, for a total of twenty-five pages. See 23 Rivas v. Padilla, 2022 WL 675704, at *2 (E.D. Cal. Mar. 7, 2022). “[A] lengthy complaint can 24 violate Rule 8 if a defendant would have difficulty responding to the complaint.” Skinner v. Lee, 25 2021 U.S. Dist. LEXIS 251321, 2021 WL 6617390, *2-*3 (C. D. Cal. May 20, 2021) (citing 26 Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011). A district court has 27 the power to dismiss a complaint when a plaintiff fails to comply with Rules 8’s pleading 28 directives. McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996); Nevijel v. North Coast Life 1 Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). When the factual elements of a cause of action are 2 not organized into a short and plain statement for each particular claim, a dismissal for failure to 3 satisfy Rule 8(a) is appropriate. Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 4 1988); see also Nevijel, 651 F.2d at 674. Under Rule 8, allegations of facts that are extraneous 5 and not part of the factual basis for the particular constitutional claim are not permitted. See 6 Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (recognizing that Rule 8 can be violated 7 when the plaintiff provide too much information). 8 As noted above, Plaintiff’s Complaint consists of 49 pages, including 31 pages of exhibits. 9 It therefore violates the page limits applicable to prisoner complaints in this District. The Court 10 will nevertheless screen Plaintiff’s Complaint but will not consider the voluminous exhibits 11 attached to the Complaint. 12 A. First Amendment – Interference with Legal Mail 13 Prisoners have a First Amendment right to send and receive mail. Witherow v. Paff, 52 14 F.3d 264, 265 (9th Cir. 1995). A prison may nonetheless regulate mail in ways that impinge on 15 that right if such regulation is reasonably related to legitimate penological interests, such as 16 safety, order, and rehabilitation. Id. Prison officials may examine an inmate’s mail without 17 infringing his rights, United States v. Wilson, 447 F.2d 1, 8 n. 4 (9th Cir. 1971), and inspect non- 18 legal mail for contraband outside the inmate’s presence. Witherow, 52 F.3d at 265–66 (upholding 19 inspection of outgoing mail). 20 As for legal mail, “prisoners have a protected First Amendment interest in having properly 21 marked legal mail opened only in their presence.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 22 1211 (9th Cir. 2017) (concluding the protected First Amendment interest extends to civil legal 23 mail). “A prison’s pattern and practice of routinely opening inmate legal mail, outside of the 24 inmate’s presence, has been found to violate the Constitution.” See Bieregu v. Reno, 59 F.3d 25 1445 (3d Cir. 1995) (prison’s “pattern and practice” of opening confidential legal mail outside of 26 inmate’s presence infringes upon inmate’s First Amendment rights and access to the courts); 27 Muhammad v. Pitcher, 35 F.3d 1081, 1085 (6th Cir. 1994). However, the Ninth Circuit and other 28 circuits have held that an isolated instance or occasional opening of inmate legal mail, outside of 1 the inmate’s presence, does not violate the Constitution. See Stevenson v. Koskey, 877 F.2d 1435, 2 1441 (9th Cir. 1989) (prison guard’s opening of inmate’s legal mail outside of the inmate’s 3 presence was, at most, negligence, and did not reach the level of intent necessary for 4 constitutional violation); Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir. 1993); Gardner v. 5 Howard, 109 F.3d 427, 431 (8th Cir. 1997) (isolated, single instance of opening incoming 6 confidential legal mail does not support a constitutional claim); Smith v. Maschner, 899 F.2d 940, 7 944 (10th Cir. 1990) (isolated incident of opening inmate legal mail “without evidence of 8 improper motive or resulting interference with [the inmate’s] right to counsel or to access the 9 courts, does not give rise to a constitutional violation”). 10 Liberally construed, the FAC contends that Defendant Barba opened the package 11 containing a USB drive with discovery materials from the Sacramento County District Attorney’s 12 Office (“DAO”), in violation of prison regulations and Plaintiff’s First Amendment rights. (Doc. 13 No. 8 at 7). The FAC also indicates that “the USB thumbdrive . . . entered the instition [sic] 14 properly marked legal mail.”5 (Id. at 11). Whether the package in question was legal mail within 15 the meaning of the First Amendment is not clear. Indeed, there remains disagreement among the 16 Circuits regarding the scope of the definition of legal mail, see Sallier v. Brooks, 343 F.3d 868, 17 876–77 (6th Cir. 2003), and particularly whether mail from a state attorney or prosecutor’s office 18 is legal mail. See Powell v. Goslin, 2021 WL 2652243, at *2 (D. Alaska June 28, 2021) (finding 19 no First Amendment violation where prison officials opened mail from state attorney’s office 20 because “correspondence and discovery from an adverse party are not privileged or protected as 21 legal mail”); but see Muhammad v. Pitcher, 35 F.3d 1081, 1085 (6th Cir. 1994) (finding policy of 22 treating all mail from state attorney general as ordinary mail unconstitutional); Jenkins v. Huntley, 23 235 Fed. Appx. 374, *2 (7th Cir. 2007) (noting that mail from state attorney’s office may be legal 24 mail if properly marked). 25 Even assuming that Plaintiff’s package was legal mail, however, the FAC fails to state a 26 claim because it alleges only a single instance of Defendant Barba opening Plaintiff’s mail 27 5 It is unclear how Plaintiff can describe the labeling of the package containing the USB drive, given that 28 he never received it. 1 outside of his presence. As noted above, in the Ninth Circuit a single or isolated instance of a 2 prison official opening an inmate’s legal mail, as opposed to a pattern of practice of doing so, 3 does not generally rise the level of a constitutional violation. See Stevenson, 877 F.2d at 1441; 4 see also Linnihan v. Foulk, 2014 WL 1922785, at *4 (E.D. Cal. May 14, 2014), report and 5 recommendation adopted, 2014 WL 3361976 (E.D. Cal. July 9, 2014). While the FAC references 6 another incident in which Plaintiff’s legal mail was partly opened outside of his presence, it 7 alleges only one such instance involving Defendant Barba. Thus, because the FAC does not 8 allege more than an isolated incident involving Defendant Barba opening Plaintiff’s mail, and 9 there are no facts to indicate that Defendant Barba had an improper motive when he opened the 10 package, the FAC fails to state a First Amendment claim based on this incident. 11 B. First Amendment Retaliation 12 It is clear prisoners have a First Amendment right to file a grievance or civil rights 13 complaint against correctional officials. Brodheim v. Cry, 584 F. 3d 1262, 1269 (9th Cir. 2009). 14 To state a claim for First Amendment retaliation, a plaintiff must allege five elements: (1) he 15 engaged in protected activity; (2) the state actor took an adverse action against the plaintiff; (3) a 16 causal connection between the adverse action and the protected conduct; (4) the defendant’s 17 actions would chill or silence a person of ordinary fitness from protected activities; and (5) the 18 retaliatory action did not advance a legitimate correctional goal. Chavez v. Robinson, 12 F.4th 19 978, 1001 (9th Cir. 2021) (quoting Rhodes, 408 F.3d at 567–68). A retaliatory motive may be 20 shown by the timing of the allegedly retaliatory act or other circumstantial evidence, as well as 21 direct evidence. Bruce v. Ylst, 351 F.3d 1283, 1288–89 (9th Cir.2003); McCollum v. Ca. Dep’t 22 of Corr. And Rehab., 647 F.3d 870, 882 (9th Cir. 2011). Mere speculation that a defendant acted 23 out of retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (citing 24 cases). 25 The FAC asserts that on July 19, 2021, Plaintiff learned that the litigation office had sent 26 back the CDs containing criminal discovery materials, which were sent from the DAO to Plaintiff 27 for review, contrary to the state court’s order directing SATF to retain the materials indefinitely. 28 (Doc. No. 8 at 9-10). The FAC asserts that Barba “did . . . so after [Plaintiff] filed two 602’s on 1 [Barba] in October and December 2020” as indicia of retaliatory motive. (Id. at 13). Plaintiff 2 states, however, “I have no exact date of when J. Barba sent my discovery evidence back to the 3 District Attorney,” (id. at 12). Because there are no facts indicating when Defendant Barba 4 returned the CDs, the Court cannot infer a retaliatory motive based on proximity in time alone. 5 See Bruce, 351 F.3d at 1288-89. While the Court finds, as discussed further below, that 6 Defendant Barba interfered with Plaintiff’s First Amendment right of access to the courts by 7 returning the discs prematurely, the FAC does not allege any other facts that would support a 8 connection between Barba’s actions and Plaintiff’s protected First Amendment conduct. 9 Plaintiff’s mere speculation that Barba returned the discs to retaliate against him is insufficient to 10 state a claim. See Wood, 753 F.3d at 905. 11 C. Access to Courts Claim 12 Inmates have a fundamental constitutional right of access to the courts and prison officials 13 may not actively interfere with an inmate’s right to litigate. Lewis v. Casey, 518 U.S. 343, 346 14 (1996); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009). Courts have traditionally 15 differentiated between two types of access claims, those involving the right to affirmative 16 assistance, and those involving an inmate’s right to litigate without active interference. Silva v. 17 Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011). 18 The right to be free from active interference does not require prison officials to provide 19 affirmative assistance in the preparation of legal papers, but rather forbids states from “erect[ing] 20 barriers that impede the right of access of incarcerated persons.” John L. v. Adams, 969 F.2d 228, 21 235 (6th Cir. 1992); Snyder v. Nolen, 380 F.3d 279, 291 (7th Cir. 2004) (“The right of access to 22 the courts is the right of an individual, whether free or incarcerated, to obtain access to the courts 23 without undue interference”). Thus, aside from their affirmative right to the tools necessary to 24 challenge their sentences or conditions of confinement, prisoners also have a right, protected by 25 the First Amendment to petition and the Fourteenth Amendment right to substantive due process, 26 “to pursue legal redress for claims that have a reasonable basis in law or fact.” Silva, 658 F.3d at 27 1102 (citation omitted). To state a viable claim of active interference, a plaintiff must show that 28 he suffered an actual injury, which requires “actual prejudice to contemplated or existing 1 litigation” by being shut out of court. Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th 2 Cir. 2011) (citing Lewis, 518 U.S. at 348, 351); Christopher v. Harbury, 536 U.S. 403, 415 3 (2002); Phillips, 588 F.3d at 655. 4 Here, the FAC contends that Defendant Barba interfered with his First Amendment right 5 of access to the courts by: (1) delaying or impeding Plaintiff’s receipt of discovery materials sent 6 by the Sacramento County DA’s office; and (2) returning CDs of discovery materials to the 7 Sacramento County DA’s office contrary to a state court order. Plaintiff states these interferences 8 interfered with is state and federal petitions. 9 The FAC asserts that after Defendant Barba rejected the DAO package containing a USB 10 drive, the DAO sent a second package that contained a “large but incomplete portion of 11 [Plaintiff’s] discovery . . . in paper form.” (Doc. No. 8 at 10-11). However, there is no indication 12 from the DAO letter accompanying the discovery materials, attached to the FAC, that anything 13 contained in the USB drive was omitted in the second discovery packet. (See id. at 21). Rather, 14 the letter lists the five items in the packet, and notes that two items that Plaintiff requested (an 15 interview transcript and dashcam video) were never located. (Id.). Further, there are no facts 16 supporting the allegation that Defendant Barba was responsible for the incomplete discovery or 17 for any actual injury or prejudice to Plaintiff’s litigation of his habeas petitions. Indeed, the FAC 18 does not specify what missing materials would have substantiated the claims in Plaintiff’s habeas 19 petition, much less how Barba was responsible for their absence. Without any facts reflecting 20 that Defendant Barba’s actions caused frustrated the prosecution of Plaintiff’s state or federal 21 habeas petitions, the FAC fails to allege an access to courts claim based on any alleged delay due 22 the return of the initial return of the USB and substitution of the paper copies. 23 As to the later return of the CDs containing discovery materials, however, the FAC 24 adequately alleges that Defendant Barba interfered with Plaintiff’s access to courts. The state 25 court issued an order indicating that SATF was to provide for the “indefinite storage” of 26 discovery materials sent by the DAO for Plaintiff’s use. (Id. at 18). Instead, unbeknownst to 27 Plaintiff, he was given only one opportunity to review materials relevant to his habeas petitions 28 before Barba returned them. (Id. at 12-13). Unlike with the USB drive, Plaintiff knew what 1 materials were contained in the CDs that were returned. The FAC specifically states that one CD 2 contained evidence supporting Plaintiff’s claims alleging “chain of custody issues and tampering 3 of evidence” but that Plaintiff was unable to attach the materials to his petition because Barba 4 returned them prematurely, contrary to the explicit language of the July 30, 2020 court order. (Id. 5 at 13). As a result, Plaintiff’s asserts that his state petition was denied on March 8, 2022, because 6 “[petitioner] provides no evidence to support” his claims. (Id.). Thus, liberally construed, by 7 returning discovery materials before Plaintiff had an opportunity to use them in his state habeas 8 petition, Defendant Barba caused actual prejudice to Plaintiff’s active state habeas proceedings in 9 violation of his First Amendment rights. 10 Regarding Petitioner’s federal petition, the Court takes judicial notice6 that Petitioner’s 11 federal petition remains pending at Case No. 2:20-cv-01596-DJC-DMC. Thus, Petitioner cannot 12 show at this time that he has suffered any injury due to Defendant Barba’s action in returning the 13 CDs, the FAC fails to state a cognizable First Amendment access to court claim in connection 14 with his federal petition. 15 OPTIONS 16 Liberally construing the FAC and accepting the allegations as true, the Court finds the 17 FAC sufficiently states a First Amendment access to courts claim against Defendant Barba as to 18 his state court petition but fails to state any other cognizable claims. To continue the prosecution 19 of this action, Plaintiff must take one of the following three options no later than February 19, 20 2024. 21 First Option: Plaintiff may file a “Notice under Rule 41 and Federal Rule of Civil 22 Procedure (“FRCP”)15” stating he intends to proceed only on the above claim deemed 23 6 Federal Rule of Evidence 201 permits a court to take judicial notice of facts that are “not subject to 24 reasonable dispute” because they are either “generally known within the trial court’s territorial jurisdiction,” or they “can be accurately and readily determined from sources whose accuracy cannot 25 reasonably be questioned.” Fed. R. Evid. 201(b). Courts judicially notice other court proceedings “if those proceedings have a direct relation to the matters at issue.” United States ex. Rel. Robinson 26 Rancheria Citizens Counsel v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (citations and internal quotation marks omitted); Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011). However, a court may 27 not take judicial notice of findings of facts from another case. Walker v. Woodford, 454 F. Supp. 2d 1007, 1022 (S.D. Cal. 2006). 28 1 || cognizable, specifically his First Amendment access to courts claim against Defendant Barba in 2 || connection with this state habeas petition, thereby voluntarily dismissing his First Amendment 3 | retaliation, legal mail, and access to court claim regarding his federal habeas corpus petition 4 | against Defendant Barba. The Court would then order service on Defendant Barba and direct him 5 || to respond to the FAC as screened herein. Second Option: Plaintiff may file a Notice to Stand on 6 | his FAC and the undersigned will issue a Findings and Recommendation to the district court to 7 | dismiss the remaining claims the Court has deemed not cognizable. If Plaintiff fails to timely 8 | respond to this Court Order, i.e., fails to elect and notify the Court of either option, the 9 | undersigned will recommend that the district court dismiss this case as a sanction for Plaintiffs 10 | failure to comply with a court order and for failing to prosecute this action after the Court issued a 11 screening order. See Local Rule 110; Fed. R. Civ. P. 41(b). 12 Accordingly, it is ORDERED: 13 1. No later than February 19, 2024 Plaintiff shall elect one of the following options 14 and deliver to correctional officials for mailing: (a) a “Notice Under Rule 41 and 15 FRCP 15” that he intends to stand on the FAC as screened, thereby dismissing 16 certain claims for the reasons stated in this Order; or (b) a “Notice to Stand on 17 FAC” subject to the undersigned recommending the district court dismiss the 18 claims deemed not cognizable. 19 2. If Plaintiff fails to timely comply with this Court Order or seek an extension of 20 time to comply, the Court will recommend the district court dismiss this action for 21 Plaintiff's failure to comply with this Court Order and prosecute this action. 22 | Dated: _ January 3, 2024 Mihaw. Wh. foareh fackte 24 HELENA M. BARCH-KUCHTA 35 UNITED STATES MAGISTRATE JUDGE

26 27 28 13