(PC) Taylor v. Carbullido ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH LEE TAYLOR, No. 2:19-cv-02550 KJM CKD P 12 Plaintiff, 13 v. ORDER 14 J. CARBULLIDO, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner, has filed this civil rights action seeking relief under 42 U.S.C. 18 § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. 19 § 636(b)(1)(B) and Local Rule 302. 20 On August 9, 2023, the magistrate judge filed findings and recommendations, which were 21 served on all parties and which contained notice to all parties that any objections to the findings 22 and recommendations were to be filed within fourteen days. Neither party has filed objections to 23 the findings and recommendations. 24 The court presumes that any findings of fact are correct. See Orand v. United States, 25 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 26 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law 27 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 28 . . . .”). Having reviewed the file, the court finds the findings and recommendations to be 1 supported by the record and by the proper analysis as to plaintiff’s First Amendment free speech 2 claim. 3 However, the magistrate judge did not address plaintiff’s First Amendment access to 4 courts claim. See F. & R. at 1 n. 1, ECF No. 2. As the magistrate judge notes in a footnote, in 5 accordance with the magistrate judge’s recommendation, this court dismissed all claims “other 6 than a claim arising under the First Amendment against defendants Hodgers and Carbullido with 7 respect to plaintiff’s allegations that they refused to permit plaintiff to solicit representation of 8 counsel via a private telephone call.” See Prior Order at 2, ECF No. 26. Neither this court nor 9 the magistrate judge specified whether the First Amendment claim was limited to plaintiff’s rights 10 to free speech, access to courts, or both. See Prior F. & R. at 1, 4, ECF No. 18. As the magistrate 11 judge noted in a prior screening order, a prisoner has a First Amendment right to access the 12 courts. See Screening Order at 3, ECF No. 6 (“To the extent plaintiff alleges he was deprived of 13 his First Amendment right to access the courts by being denied a confidential telephone 14 conversation with an attorney concerning the possibility of the attorney representing plaintiff in 15 certain civil matters, plaintiff must point to an actual injury . . . .”); see also Bill Johnson’s Rest., 16 Inc. v. N.L.R.B., 461 U.S. 731, 741 (1983) (“[T]he right of access to the courts is an aspect of the 17 First Amendment right to petition the Government for redress of grievances.”); Hydrick v. 18 Hunter, 500 F.3d 978, 999 (9th Cir. 2007), vacated on other grounds, 556 U.S. 1256 (2009) 19 (“The right of access to courts has been found to encompass the right to talk in person and on the 20 telephone with counsel in confidential settings[.]”). Therefore, the court remands this matter back 21 to the magistrate judge to issue findings and recommendations as to plaintiff’s First Amendment 22 access to courts claim. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// ] Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed on August 9, 2023 (ECF No. 69), are 3 adopted in part; 4 2. Defendants’ motion for summary judgment (ECF No. 53) is granted in part as to 5 plaintiff's First Amendment free speech claim; and 6 3. This matter is referred back to the magistrate judge to issue findings and 7 recommendations as to defendants’ motion for summary judgment on plaintiffs First 8 Amendment access to courts claim. 9 || DATED: September 29, 2023. 11 CHIEF ED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28