Toscano v. Ramos

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ADRIAN TOSCANO, Case No.: 22-cv-0321-CAB-BGS CDCR #V-19411, 12 REPORT AND RECOMMENDATION Plaintiff, 13 REGARDING DEFENDANT’S v. MOTION TO DISMISS PLAINTIFF’S 14 FIRST AMENDED COMPLAINT SERGEANT RAMOS, 15 [ECF NO. 20] Defendant. 16

17 Presently before the Court is a Motion to Dismiss Plaintiff’s First Amended 18 Complaint filed by Defendant Sergeant M. Ramos on May 18, 2023, pursuant to Federal 19 Rule of Civil Procedure 12(b)(6). (ECF No. 20.) On June 12, 2023, Plaintiff Adrian 20 Toscano filed an opposition to the motion. (ECF No. 22.)1 On June 22, 2023, Defendant 21 filed a reply. (ECF No. 23.) On July 10, 2023, Plaintiff filed a brief captioned as a “Reply 22 23

24 25 1 Plaintiff’s opposition is captioned as “Plaintiff’s Reply Notice of Motion and Motion to Grant Plaintiff’s First Amended Complaint” (ECF No. 22 at 1), leading the Clerk of 26 Court to docket the filing as a separate motion. (See Docket.) Based on the timing and 27 content of this filing, however, the Court construes it as Plaintiff’s opposition to Defendant’s motion to dismiss his First Amended Complaint. The Court directs the Clerk 28 1 to Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint,” which the Court 2 construes as a sur-reply. (ECF No. 24.)2 3 This Report and Recommendation is submitted to United States District Judge 4 Cathy Ann Bencivengo pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c). 5 For the reasons discussed below, IT IS RECOMMENDED that Defendant’s motion to 6 dismiss be GRANTED IN PART and DENIED IN PART, and this action be 7 DISMISSED. 8 I. BACKGROUND 9 A. Plaintiff’s Allegations 10 Plaintiff, a state prisoner incarcerated at Centinela State Prison, is proceeding pro 11 se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 12 Plaintiff’s First Amended Complaint alleges that on May 30, 2021, Defendant Ramos 13 advised Plaintiff that he had legal mail in a manila envelope belonging to Plaintiff. (ECF 14 No. 19 at 4.)3 Plaintiff asserts that Defendant Ramos personally picked up the legal mail 15 from the prison mailroom, came to Plaintiff’s housing unit, told Plaintiff that he would be 16 examining the mail, and asked Plaintiff if the mail contained anything illegal. (Id. at 5.) 17 Plaintiff states that he informed Defendant that a court deadline was “near” and there was 18 “no illegal violation.” (Id.) Plaintiff alleges that Defendant stated that he would 19

20 21 2 The Civil Local Rules do not allow for sur-replies. The Court in its discretion may allow the filing of a sur-reply; however, this discretion should be exercised in favor of allowing 22 a sur-reply only when a valid reason for such additional briefing exists. Johnson v. 23 Wennes, No. 08-CV-1798-L(JMA), 2009 WL 1161620, at *2 (S.D. Cal. Apr. 28, 2009). In view of Plaintiff’s status as a pro se litigant, and his apparent confusion regarding the 24 filing requirements regarding Defendant’s motion to dismiss, notwithstanding the 25 briefing schedule issued by the Court on May 19, 2023 (ECF No. 21), the Court accepts Plaintiff’s sur-reply and has considered the contents contained therein. Plaintiff is 26 cautioned, however, that he must strictly adhere to the Court’s orders in the future. 27 3 The Court’s citations to the docket refer to the page numbers affixed by the Court’s 28 1 personally “make sure” that the envelope would be mailed on time. (Id.) Plaintiff states 2 that Defendant placed the mail in his bag and walked away. (Id.) Plaintiff asserts that the 3 legal mail consisted of a supplemental brief prepared by his personal paralegal 4 representative. (Id. at 4.) He further contends that his representative sent the supplemental 5 brief directly to the California Second District Court of Appeal. (Id.; see also id. at 28.) 6 The supplemental brief was due by May 21, 2021. (Id. at 4.) 7 The attachments to Plaintiff’s First Amended Complaint reflect that in February 8 2019, Plaintiff filed a petition for resentencing under California Penal Code section 9 1170.95 in the Superior Court of Los Angeles County and requested the appointment of 10 counsel. (Id. at 36.) Counsel was appointed. (Id.) On November 16, 2020, the trial court 11 denied the petition. (Id. at 36-37.) Plaintiff filed a timely notice of appeal in the Court of 12 Appeal of the State of California, Second Appellate District. (Id. at 32, 37.) The appellate 13 court appointed counsel to represent Plaintiff. (Id. at 27.) Appointed counsel filed a brief 14 pursuant to People v. Wende, 25 Cal.3d 436 (1979), in which no issues were raised. (Id.) 15 On March 22, 2021, the Court of Appeal notified Plaintiff that his attorney had filed a 16 brief that raised no issues and that “he could submit by brief or letter any grounds for an 17 appeal, or contentions or arguments he wished this court to consider.” (Id.) On April 26, 18 2021, the appellate court extended the deadline for Plaintiff to file a supplemental brief to 19 May 21, 2021. (Id. at 34.) The court did not receive a response from Plaintiff. (Id. at 37.) 20 On June 10, 2021, the Court of Appeal affirmed the trial court’s order denying the 21 petition for resentencing. (Id. at 32-33.) The appellate court found: 22 Because Toscano was convicted under a valid theory of murder that survived the changes to sections 188 and 189 [of the California Penal Code], he is 23 ineligible for relief under section 1170.95. We have examined the entire 24 record, and are satisfied appellate counsel has fully complied with counsel’s responsibilities and no arguable issues exist in the appeal before us. 25 [Citations omitted.] 26 (Id. at 37.) 27 28 1 On July 18, 2021, Plaintiff filed a California Department of Corrections and 2 Rehabilitation (“CDCR”) Form 602 Appeal in which he contended that Defendant’s 3 withholding of his supplemental brief caused the Court of Appeal to deny his appeal. (Id. 4 at 30.) He also noted that the brief had not yet been returned to him. (Id.) He requested 5 that Defendant “find a way to convince the Court of Appeal to reconsider” his case. (Id.) 6 On September 17, 2021, the CDCR disapproved Plaintiff’s appeal. (Id. at 28.) The appeal 7 decision states: “In accordance with policy, all undelivered letters and packages returned 8 to a facility by the post office shall be opened and inspected before being returned to the 9 inmate.” (Id.) The purpose of the inspection is to determine if the mail originated with the 10 inmate sender identified on the mail, and to prevent the transmission of contraband into 11 the facility. (Id.) According to the appeal decision, both Plaintiff and Defendant were 12 interviewed, and both stated that the envelope returned by the USPS [United States Postal 13 Service] did not originate from Plaintiff. (Id.) Plaintiff indicated that the mail had 14 originated from another inmate but declined to identify the inmate. (Id.) In his opposition 15 to the current motion, Plaintiff speculates that the mail may have been returned by the 16 post office due to “possible postage needed.” (ECF No. 22 at 2.)4 17 B. Procedural History 18 In his original Complaint, filed on March 7, 2022, Plaintiff alleged that Defendants 19 Sergeant Ramos and F. Guzman, Chief Deputy Warden, violated his Fifth, Eighth, and 20 Fourteenth Amendment rights by confiscating his legal mail and denying his grievance 21

22 23 4 Attached to Plaintiff’s original Complaint, but not his First Amended Complaint, is a CDCR appeal decision dated February 1, 2022, finding that the mailing was not to or 24 from a court of appeal as claimed by Plaintiff. (ECF No. 1-2 at 14.) Rather, the mailing 25 label on the package indicated it was mailed to 300 South Santa Fe Ave., Apt. 228, Los Angeles, CA 90013-3101, which corresponds to a private apartment complex. (Id.) The 26 decision also notes that outgoing legal mail sent from Centinela State Prison is required 27 to be sealed in the presence of designated staff and signed across the back of the envelope, and photographs of the package indicated the package did not have the required 28 1 appeals. (ECF No. 1.) On May 10, 2022, the District Court issued a screening order 2 finding that the allegations in the Complaint were sufficient to plausibly state a First 3 Amendment access to courts claim against Defendant Ramos. (ECF No. 5 at 8.) The 4 screening order dismissed the claims asserted against Defendant F. Guzman. (Id. at 8-9.) 5 On June 13, 2022, the District Court denied Plaintiff’s motion for leave to file an 6 amended complaint because Plaintiff sought to “reassert the claims and defendant already 7 dismissed” without leave to amend. (ECF No. 8 at 1.) The Court ordered that the case 8 would proceed as to the First Amendment access to courts claim against Defendant 9 Ramos only. (Id. at 2.) 10 On August 30, 2022, Defendant Ramos filed a motion to dismiss Plaintiff’s 11 Complaint for failure to state a claim based on three grounds: (1) Plaintiff’s underlying 12 petition for resentencing was frivolous and therefore he did not suffer an “actual injury”; 13 (2) Plaintiff failed to demonstrate that Defendant was personally involved in the 14 confiscation of his brief; and (3) Plaintiff’s rights were not violated because his brief was 15 past-due when Defendant notified Plaintiff of the confiscation. (ECF No. 10.) Plaintiff 16 filed an opposition to the motion, and Defendant filed a reply. (ECF Nos. 12, 13.) On 17 January 12, 2023, the undersigned issued a Report and Recommendation Granting 18 Defendant’s Motion to Dismiss Plaintiff’s Complaint (the “Report”). (ECF No. 14.) On 19 March 30, 2023, the District Court issued an order adopting the Report in part. (ECF No. 20 18.) Specifically, the Court ordered: (1) the motion to dismiss based on “actual injury” 21 was DENIED pursuant to the Ninth’s Circuit decision in Hebbe v. Pliler, 627 F.3d 228 22 (9th Cir. 2010); (2) the motion to dismiss based on Plaintiff’s failure to allege Defendant 23 personally participated in the violation of his rights was GRANTED with leave to amend; 24 and (3) the motion to dismiss based on timeliness was GRANTED with leave to amend. 25 (ECF No. 18 at 5.) 26 27 28 1 On May 4, 2023, Plaintiff filed a First Amended Complaint (“FAC”). (ECF No. 2 19.)5 Defendant Ramos presently moves for dismissal on the grounds that the FAC fails 3 to allege any facts that could state a claim against him. (ECF No. 20.)6 4 II. LEGAL STANDARDS 5 A. 42 U.S.C. § 1983 6 Section 1983 “provides a federal cause of action against any person who, acting 7 under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 526 8 U.S. 286, 290 (1999). The statute “offers no substantive legal rights, but rather provides 9 procedural protections for federal rights granted elsewhere.” Roberts v. Klein, 770 F. 10 Supp. 2d 1102, 1111 (D. Nev. 2011) (citing Albright v. Oliver, 510 U.S. 266, 271 11 (1994)). “Section 1983 is a ‘vehicle by which plaintiffs can bring federal constitutional 12 and statutory challenges to actions by state and local officials.’” Naffe v. Frey, 789 F.3d 13 1030, 1035 (9th Cir. 2015) (quoting Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 14 2006)). “To state a claim under § 1983, a plaintiff must [1] allege the violation of a right 15 secured by the Constitution and laws of the United States, and [2] must show that the 16 alleged deprivation was committed by a person acting under color of state law.’” Id. at 17 1035-36 (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). “Dismissal of a § 1983 claim 18 following a Rule 12(b)(6) motion is proper if the complaint is devoid of factual 19 allegations that give rise to a plausible inference of either element.” Id. at 1036 (citing 20 DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000); Price v. Hawaii, 939 21 F.2d 702, 707-09 (9th Cir. 1991); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 22 / / / 23 / / / 24 25 5 Plaintiff’s First Amended Complaint is set forth in part on a form Petition for Writ of 26 Habeas Corpus. (See ECF No. 19.) 27 6 Defendant’s request for judicial notice, attached to his motion to dismiss (ECF No. 20- 28 1 B. Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) 2 A motion to dismiss under Rule 12(b)(6) may be based on either a “lack of a 3 cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable 4 legal theory.” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 5 2008) (citation omitted). “To survive a motion to dismiss, a complaint must contain 6 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 7 face.’” Iqbal, 556 U.S. at 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 8 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that 9 allows the court to draw the reasonable inference that the defendant is liable for the 10 misconduct alleged.” Id. (citing Twombly, 556 U.S. at 556). Although “[t]he plausibility 11 standard is not akin to a ‘probability requirement,’ . . . it asks for more than a sheer 12 possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 13 556). In determining plausibility, the court is permitted “to draw on its judicial 14 experience and common sense.” Id. at 679. 15 When considering a Rule 12(b)(6) motion to dismiss, the court must “accept all 16 allegations of material fact in the complaint as true and construe them in the light most 17 favorable to the non-moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of 18 Postmasters, 497 F.3d 972, 975 (9th Cir. 2007). “The court need not, however, accept as 19 true allegations that are merely conclusory, unwarranted deductions of fact, or 20 unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 21 2001); see also Iqbal, 556 U.S. at 679 (“[A] court considering a motion to dismiss can 22 choose to begin by identifying pleadings that, because they are no more than conclusions, 23 are not entitled to the assumption of truth.”). “Threadbare recitals of the elements of a 24 cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 25 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the 26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). 27 When resolving a motion to dismiss for failure to state a claim, the Court generally 28 limits its review to the contents of the complaint. Allarcam Pay Television Ltd. v. Gen. 1 Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995); see also Schneider v. Cal. Dep’t of 2 Corrs., 151 F.3d 1194, 1197 n.1 (“The focus of any Rule 12(b)(6) dismissal . . . is the 3 complaint.”). This precludes consideration of “new” allegations that are raised in a 4 plaintiff’s opposition to a motion to dismiss brought pursuant to Rule 12(b)(6). 5 Schneider, 151 F.3d at 1197 n.1 (citing Harrell v. United States, 13 F.3d 232, 236 (7th 6 Cir. 1993); 2 James Wm. Moore et al., Moore's Federal Practice § 12.34[2] (3d ed. 7 1997) (“The court may not . . . take into account additional facts asserted in a 8 memorandum opposing the motion to dismiss, because such memoranda do not constitute 9 pleadings under Rule 7(a).”)). However, “[w]hen a plaintiff has attached various exhibits 10 to the complaint, those exhibits may be considered in determining whether dismissal [i]s 11 proper without converting the motion to one for summary judgment.” Parks Sch. of Bus., 12 Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (citation omitted). Additionally, 13 “documents whose contents are alleged in a complaint and whose authenticity no party 14 questions, but which are not physically attached to the pleading, may be considered in 15 ruling on a Rule 12(b)(6) motion to dismiss.” Branch v. Tunnell, 14 F.3d 449, 454 (9th 16 Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 17 1119 (9th Cir. 2002); see also Stone v. Writer’s Guild of Am. W., Inc., 101 F.3d 1312, 18 1313-14 (9th Cir. 1996). 19 Claims asserted by pro se prisoners, “however inartfully pleaded,” are held “to less 20 stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 21 U.S. 519, 520 (1972). Thus, courts “continue to construe pro se filings liberally when 22 evaluating them under Iqbal” and “afford the petitioner the benefit of any doubt.” Hebbe, 23 627 F.3d at 342 (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). 24 C. Access to Courts Under the First Amendment 25 Prisoners have a First Amendment right of access to the courts which guarantees 26 them the “capability of bringing contemplated challenges to sentences or conditions of 27 confinement before the courts.” See Lewis v. Casey, 518 U.S. 343, 346, 356 (1996); 28 Bounds v. Smith, 430 U.S. 817, 821 (1977); Jones v. Williams, 791 F.3d 1023, 1035 (9th 1 Cir. 2015). The right is limited to the filing of direct criminal appeals, habeas petitions, 2 and civil rights actions. Lewis, 518 U.S. at 354. It does “not create an abstract, 3 freestanding right to … legal assistance,” id. at 351, and does not “guarantee inmates the 4 wherewithal to transform themselves into litigating engines.” Id. at 355. 5 Claims of denial of access to the courts fall into two categories: forward-looking 6 and backward-looking. Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). “[T]he 7 essence of [a forward-looking] access claim is that official action is presently denying an 8 opportunity to litigate for a class of potential plaintiffs[;] [t]he opportunity has not been 9 lost for all time . . . but only in the short term.” Id. at 413. Backward-looking access 10 claims involve “specific cases that cannot now be tried (or tried with all material 11 evidence), no matter what official action may be in the future.” Id. at 413-14; see also 12 Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (differentiating “between two 13 types of access to court claims: those involving prisoners’ right to affirmative assistance 14 and those involving prisoners’ rights to litigate without active interference”), overruled 15 on other grounds by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). But the 16 threshold requirement for any claim based on the denial of access to the courts is the 17 allegation of an “actual injury.” See Lewis, 518 U.S. at 351–53; Silva, 658 F.3d at 1104. 18 “[A]ctual injury” is defined as “actual prejudice with respect to contemplated or existing 19 litigation, such as the inability to meet a filing deadline or to present a claim.” Lewis, 518 20 U.S. at 348; see also Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual 21 injury as the “inability to file a complaint or defend against a charge”). 22 III. DISCUSSION 23 A. Deadline to File Plaintiff’s Supplemental Appellate Brief Had Already Expired 24

25 Defendant first argues that the alleged confiscation of Plaintiff’s mail did not 26 frustrate the litigation of Plaintiff’s underlying appeal from the denial of his petition for 27 resentencing because the deadline to file his supplemental brief with the California Court 28 of Appeal had already expired. (ECF No. 20 at 12.) 1 Plaintiff alleges that Defendant’s actions caused him to miss his supplemental brief 2 deadline with the California Court of Appeal. Thus, his claim is “backward-looking.” A 3 prisoner alleging a backward-looking access to courts claim must sufficiently plead: (1) a 4 “nonfrivolous” and “arguable” underlying claim pled “in accordance with Federal Rule 5 of Civil Procedure 8(a), just as if it were being independently pursued”; (2) an act by a 6 prison official which frustrated the litigation of the underlying claim; and (3) a “remedy 7 available under the access claim and presently unique to it” that is “not otherwise 8 available in some suit that may yet be brought.” Harbury, 536 U.S at 415, 417-18. 9 According to Plaintiff’s FAC, the deadline for Plaintiff to file his supplemental 10 brief was May 21, 2021. (ECF No. 19 at 4, 18; see also id. at 34 (notice by California 11 Court of Appeal extending deadline to May 21, 2021).) On or about May 30, 2021, 12 Plaintiff was advised by Defendant that he had a legal mail manila envelope containing 13 Plaintiff’s supplemental brief. (Id. at 4.) According to the FAC, all U.S. mail arrives to 14 one facility mail room. (Id. at 5.) Plaintiff asserts that the mail room called Defendant, 15 who personally picked up the mail. (Id.) Defendant then allegedly came directly to 16 Plaintiff’s housing unit where he made clear to Plaintiff that he would be examining the 17 legal mail. (Id. at 5.) 18 Plaintiff fails to plead any facts that Defendant confiscated the legal mail prior to 19 the May 21, 2021 deadline imposed by the Court of Appeal. Rather, he alleges that 20 Defendant confiscated the brief on May 30, 2021, which was well after the May 21, 2021 21 deadline for Plaintiff to file his supplemental brief. Thus, assuming that Defendant did 22 confiscate his legal mail, this action did not frustrate the litigation of his underlying 23 appeal from the denial of his petition for resentencing.7 Therefore, the Court recommends 24 Defendant’s motion to dismiss on this ground be GRANTED. 25

26 27 7 On these same allegations, the District Court found in its March 30, 2023 Order that Plaintiff failed to allege that Defendant participated in the confiscation of his brief prior 28 1 B. Defendant’s Request for Reconsideration of the District Court’s Prior Ruling Regarding Dismissal Based on “Actual Injury” 2

3 Defendant next requests that the Court revisit its prior ruling that Plaintiff’s 4 underlying appeal was not frivolous. (ECF No. 20 at 15-19.) In its March 30, 2023 Order, 5 the District Court, citing Hebbe v. Pliler, 627 F.3d 228 (9th Cir. 2010), held: “In line with 6 Ninth Circuit precedent, the Court does not find Plaintiff’s underlying claim is frivolous 7 merely because his attorney filed a Wende brief and the Court of Appeal found no relief.” 8 (ECF No. 18 at 4.) Defendant, citing to his first motion to dismiss, argues that Hebbe is 9 distinguishable because the California Court of Appeal performed an independent review 10 of the record and found no triable, or nonfrivolous, issues. (ECF No. 20 at 15, citing ECF 11 No. 10 at 11-14.)8 Defendant thus argues that Plaintiff did not suffer an “actual injury” 12 required to state a First Amendment access to court claim. (Id.; see also Lewis, 518 U.S. 13 at 351–53 (setting forth “actual injury” requirement for any claim based on the denial of 14 access to the courts).) 15 A district court may reconsider its prior rulings as long as it retains jurisdiction 16 over the case. City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 888 (9th 17 Cir. 2001). Application of the law of the case doctrine is discretionary. Id. Under Ninth 18 Circuit precedent, reconsideration is only appropriate “if the district court (1) is presented 19 with newly discovered evidence, (2) committed clear error or the initial decision was 20 manifestly unjust, or (3) there is an intervening change in controlling law.” Sch. Dist. No. 21 1J, Multnomah Cnty, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 22 Here, Defendant asks the Court to reconsider its prior ruling on the basis that he 23 did not distinguish Hebbe in his prior motion. (ECF No. 20 at 15-16.) He contends that 24 Hebbe did not consider whether a separate court had determined there were no available 25 issues on appeal. (Id. at 16.) He argues that in this case, the appellate court made that 26

27 8 Defendant’s citations to his first Motion to Dismiss are to the page numbers on the document rather 28 1 determination, providing an independent judicial finding that there was no merit to the 2 appeal. (Id.) In his view, this finding is sufficient to permit the Court to find that 3 Plaintiff’s appeal was frivolous, and grant Defendant’s motion to dismiss. (Id.) In 4 essence, Defendant is contending that the District Court committed clear error by 5 misapplying the holding in Hebbe. 6 The argument raised by Defendant presents the issue of whether the California 7 Court of Appeal in Hebbe undertook an independent review for valid claims. In that case, 8 Hebbe’s attorney filed a Wende brief. Hebbe, 627 F.3d at 340. The Hebbe court stated 9 that when an attorney files a Wende brief, the court is then obligated to undertake an 10 independent review of the record for valid claims. Id. at 340 n.1. The Hebbe court noted 11 that the California Court of Appeal dismissed Hebbe’s appeal because he failed to file a 12 supplemental brief by the Court’s deadline. (Id. at 340.) To dismiss the case, the 13 California Court of Appeal necessarily would have undertaken an independent review 14 and would have found no meritorious issues. Yet, the Hebbe court held that if Hebbe had 15 been denied his library access, as he alleged, that would establish that he was 16 impermissibly denied the opportunity to appeal his conviction. (Id. at 343.) Such a denial 17 would fulfill the “actual injury” requirement under Lewis. (Id. at 343.)9 18 Similarly, in this case, the District Court noted that Plaintiff’s appeal was denied 19 after his counsel filed a Wende brief and the Court of Appeal conducted an independent 20 review of the record. (ECF No. 18 at 4.) As the District Court stated, “Just as the plaintiff 21 in Hebbe argued frustration of his ability to file his pro se supplemental brief due to lack 22 of access to the law library, Plaintiff alleges he was frustrated in his efforts of appeal 23 24

25 9 In Lewis, the Court reiterated that penal institutions have a duty to afford prisoners “a 26 reasonably adequate opportunity to present claimed violations of fundamental 27 constitutional rights to the courts.” Lewis, 518 U.S. at 351 (citing Bounds, 430 U.S. at 825). 28 1 when his pro se supplemental brief was confiscated by prison officials.” (Id.) The District 2 Court accordingly denied Defendant’s first motion to dismiss as to this issue. (Id.) 3 Defendant has not established that the District Court’s ruling was clearly 4 erroneous.10 As such, the Court recommends that Defendant’s motion to reconsider its 5 ruling regarding dismissal based on “actual injury” be DENIED. 6 C. Failure to Sufficiently Allege a “Nonfrivolous” or “Arguable” Claim 7 Defendant’s third argument is that Plaintiff’s FAC fails to allege an access to 8 courts claim because he “does not describe the predicate claim at all, let alone why it was 9 non-frivolous.” (ECF No. 20 at 19.) 10 A prisoner alleging an access to courts a claim must plausibly allege the loss of a 11 “nonfrivolous” or “arguable” underlying claim pled “in accordance with Federal Rule of 12 Civil Procedure 8(a), just as if it were being independently pursued.” Harbury, 536 U.S at 13 415; see also Fed. R. Civ. P. 8(a)(2) (requiring “a short and plain statement of the claim 14 showing that the pleader is entitled to relief”). “[I]t is not enough simply to state a 15 ‘nonfrivolous’ claim has been dismissed or impeded due to the action of some 16 government official.” Easter v. CDC, 694 F. Supp. 2d 1177, 1191 (S.D. Cal. 2002). 17 Instead, the “predicate claim must be described well enough to apply the ‘nonfrivolous’ 18 test and to show that the ‘arguable’ nature of the underlying claim is more than hope.” 19 Harbury, 536 U.S. at 416; see also Lewis, 518 U.S. at 353 (providing that actual injury 20 exists only if an inmate can “demonstrate that a nonfrivolous legal claim had been 21 frustrated or was being impeded”). A plaintiff does not have to show that his claim would 22 have ultimately been successful on the merits. Allen v. Sakai, 48 F.3d 1082, 1085 (9th 23 Cir. 1994). But he must show that it had arguable merit. Lewis, 518 U.S. at 353 n.3. 24 In the FAC, Plaintiff states only that the supplemental brief that was allegedly 25 confiscated by Defendant constituted “a meritorious legal brief” that could have 26 27 10 The Court finds that this case does not involve newly discovered evidence or an 28 1 “prove[n] his case” and resulted in “possible resentencing and release.” (ECF No. 19 at 2 4.) He does not otherwise describe in any way the underlying claim in the legal mail brief 3 and thus has not demonstrated his claim was not based on “more than hope.” See 4 Harbury, 536 U.S at 416. Plaintiff has therefore fallen well short of the requirement that 5 he allege facts sufficient to show that Defendant caused actual injury to a nonfrivolous 6 legal claim. See id.; see also Rushdan v. Gear, Case No. 1:16-cv-01017-BAM (PC), 2018 7 WL 2229259, at *4 (E.D. Cal. May 16, 2018) (finding that plaintiff’s conclusion that his 8 claim was nonfrivolous was insufficient to state an access to courts claim), aff’d, 744 F. 9 App’x 510 (9th Cir. 2018). 10 In his opposition, Plaintiff appears to contend that his appeal of the state trial 11 court’s denial of his petition for resentencing is meritorious because he “can prove he did 12 not shoot any one.” (ECF No. 22 at 5.)11 Any new facts or allegations contained in 13 Plaintiff’s opposition, however, do not constitute pleadings under Rule 7(a) and thus 14 cannot be considered on a motion to dismiss. See Schneider, 151 F.3d at 1197 n.1. And 15 even if Plaintiff had included an allegation in his FAC that he “can prove he did not shoot 16 any one,” this bare assertion would be insufficient to meet the requirement that he 17 describe the predicate claim well enough to demonstrate that his underlying claim is 18 based on “more than hope.” See Harbury, 536 U.S at 416. 19 Therefore, the Court recommends Defendant’s motion to dismiss on this ground be 20 GRANTED. 21 / / / 22 / / / 23 / / / 24 25 26 11 In its order denying Plaintiff’s appeal, the California Court of Appeal stated, “Here, it is 27 undisputed that the record of conviction establishes that Toscano intentionally killed Nimir by shooting him. . . . [Therefore,] he is ineligible for [resentencing] under section 28 1 |}IV. CONCLUSION 2 For the reasons discussed above, Defendant’s Motion to Dismiss Plaintiffs First 3 || Amended Complaint [ECF No. 20] should be GRANTED IN PART and DENIED IN 4 || PART, and the case should be DISMISSED for failure to state a cognizable claim. 5 This Report and Recommendation will be submitted to United States District Judge 6 || Cathy Ann Bencivengo, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any party 7 file written objections with the Court and serve a copy on all parties on or before 8 || December 7, 2023. The document should be captioned “Objections to Report and 9 || Recommendation.” Any reply to the objections shall be served and filed on or before 10 || December 14, 2023. The parties are advised that the failure to file objections within the 11 || specified time may waive the right to raise those objections on appeal of the Court’s 12 || order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 13 14 || Dated: November 16, 2023 p / / 15 on. Bernard G. Skomal 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28

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