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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CHRISTOPHER D. WARSAW,
Plaintiff,
v.
CAPTAIN J. GARCIA, CDCR A.W.
- A MAY, STAFF A. PEREZ,
Defendants.
Case No.: 25-cv-1262-JO-DDL
REPORT AND
RECOMMENDATION FOR
ORDER GRANTING
DEFENDANTS’ MOTION TO
DISMISS WITH LEAVE TO
AMEND
[Dkt. No. 2]
The undersigned respectfully submits this Report and Recommendation to
United States District Judge Jinsook Ohta pursuant to 28 U.S.C. § 636(b) and Civil
Local Rule 72.3. Plaintiff Christopher D. Warsaw (“Plaintiff”), an inmate at Richard
J. Donovan Correctional Facility (“RJD”), is proceeding pro se in this civil rights
action. Before the Court is a Motion to Dismiss Plaintiff’s Complaint (the “Motion to
Dismiss”) 	by 	Defendants 	A. 	Perez, 	J. 	Garcia, 	and 	A. 	May 	(collectively
“Defendants”). Dkt. No. 2.
For the reasons stated below, the undersigned RECOMMENDS that the
District Court GRANT Defendants’ Motion to Dismiss WITH LEAVE TO AMEND.
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I.
BACKGROUND
A. 	Procedural History
On February 13, 2025, Plaintiff filed his initial complaint in the Superior Court
of California, County of San Diego. Dkt. No. 1-4 at 13-39. 	Defendants removed
the action to this Court on May 16, 2025. Id.
On May 29, 2025, Defendants filed the instant Motion to Dismiss for Failure
to State a Claim. Dkt No. 2.
On May 30, 2025, Plaintiff filed a timely motion objecting to removal that the
Court interpreted as a motion to remand and a motion for appointment of counsel.
Dkt. Nos. 4, 6; 28 U.S.C § 1447(c). On July 17, 2025, the District Court denied
Plaintiff’s motion to remand, “constru[ing] Plaintiff’s claim that state prison officers
wrongly denied him access to legal materials for his state criminal and habeas
cases as a 42 U.S.C. § 1983 claim for a violation of the First Amendment right to
access the courts” over which the Court has original jurisdiction. Dkt. No. 11.
On July 17, 2025, Plaintiff requested entry of Clerk Default under Rule 55(a)
against Defendants for failing to file an answer or responsive pleading to the
complaint within 21 days pursuant to Rule 12(a)(1)(A)(i). Dkt. No. 12.
B. 	Complaint Allegations
The first page of Plaintiff’s Complaint describes his cause of action as “due
process violation” and “under color of law.” The Complaint contains two causes of
action. 	The first cause of action alleges Defendants “violated my constitutional
rights ‘due process’ by denying me access to the courts in a pending 1054.9
discovery motion pending before Judge Ronald S. Coen, Dept. 101 LA Superior
Court.” Dkt. No. 1-3 at 7. Specifically, Plaintiff alleges he requested Officer Paul
Devlin’s bodyworn camera (“BWC”) footage from a shooting incident involving
Plaintiff “preparing to file a writ of habeas and Pitchess motion against Officer Paul
Devlin of the Inglewood Police Department.” 	Id. The BWC video was sent to
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Plaintiff at RJD by Lieutenant Scott Collins of the Inglewood Police Department
(“IPD”). Id. Plaintiff alleges Defendants denied him access to the video and sent
the video back to the IPD. Id.
Plaintiff’s 	second 	cause 	of 	action 	alleges 	Defendants 	“intentional[ly]
interfered with evidence sent to Plaintiff bodycam video also intentionally inflicted
emotional/physical distress.” 	Id. at 8.
The Complaint includes documentation from Plaintiff’s CDCR grievances.
Id. at 10-29. According to an “Office Of Appeals Decision” issued on May 24, 2024:
Appellant’s received disc was correctly considered contraband as
outlined within Title 15, section 3006(c)(10) and appellant received a
Form 1819, Notification of Disapproval for Mail/Packages/Publications
accordingly. Furthermore, appellant does not have any way to view the
police video disc if it were allowable property obtained through an
approved vendor. Appellant was advised to request to view the video
disc with assistance from the Investigative Serivces [sic] Unit, or
appellant can request a transcript of the video from the Inglewood
Police Department. No violation of departmental policy or procedures
were discovered in the review of the grievance. Thus, the claim is
denied.
Id. at 10.
C. 	Parties’ Positions
Defendants contend the Complaint does not allege a claim under 42 U.S.C.
§ 1983 and fails to allege an injury. Dkt. No. 2. Additionally, Defendants argue that
Plaintiff fails to state an IIED claim because he does not allege Defendants acted
with “extreme and outrageous conduct with the intention of causing, or reckless
disregard of the probability of causing, emotional distress.” Id.
Plaintiff contends Defendants did not comply with Fed. R. Civ. P. 12(A)(i)’s
requirement to serve an answer within 21 days of service with of a summons and
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complaint. Dkt. 	No. 	10. Plaintiff 	also contends 	he is 	entitled to amend the
complaint, should the Court grant Defendants’ Motion to Dismiss. Id.
Defendants reply that their Motion was filed timely following removal, thereby
tolling the time permitted for filing an answer. Dkt. No. 13. Defendants further
contend that Plaintiff “offers no argument, analysis, or rebuttal to Defendants’
Motion to Dismiss” and request the Court dismiss Plaintiff’s complaint without leave
to amend. Id.1
II.
LEGAL STANDARDS
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
“tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001).2 To survive a motion to dismiss, a complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6). “A claim has facial plausibility
when 	the 	plaintiff 	pleads 	factual 	content 	that 	allows 	the 	court 	to 	draw 	the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court must “accept all allegations
of material fact in the complaint as true and construe them in the light most
favorable to the non-moving party,” Cedars-Sinai Med. Ctr. v. Nat’l League of
Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007), but need not “accept as
1 Defendants are correct that a timely motion to dismiss tolls the deadline to
answer a complaint. Fed. R. Civ. P. 12(a)(4). However, Defendants assume their
motion was timely filed. 	See Fed. R. Civ. P. 81(c)(2)(C) (where defendant did not
answer before removal, must respond to complaint “7 days after the notice of
removal is filed”). Given that this issue was not raised by the parties, the Court
will consider the motion to dismiss on the merits.
2 Unless otherwise noted, all internal quotations marks, ellipses, brackets,
citations, footnotes and parallel reporter citations are omitted.
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true allegations that are merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F. 3d 1049, 1055 (9th
Cir. 2008).
Pleadings drafted by pro se inmates such as Plaintiff are “held to less
stringent standards than formal pleadings drafted by lawyers” and the Court must
construe them “liberally.” 	Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
Nevertheless, the complaint “must allege with at least some degree of particularity
overt facts which defendant[s] engaged in to support plaintiff’s claim,” Herrejon v.
Ocwen Loan Servicing, LLC, 980 F. Supp. 2d 1186, 1196 (E.D. Cal. 2013), and
the Court must not “supply essential elements of the claim that were not initially
pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997).
The Court may consider material which is properly submitted as part of the
complaint, such as an attached exhibit or a document incorporated by reference
into the complaint, without converting the motion to dismiss into a motion for
summary judgment. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484
(9th Cir. 1995). However, the Court “may not look beyond the complaint to a
plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s
motion to dismiss.” Schneider v. California Dep’t of Corr., 151 F.3d 1194, 1197 n.1
(9th Cir. 1998).
Where a complaint does not survive a Rule 12(b)(6) analysis, the Court will
grant leave to amend unless it determines that no modified contention “consistent
with the challenged pleading…[will] cure the deficiency” making amendment futile.
DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655,658 (9th Cir. 1992) (internal
citation omitted); see Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003). Before
dismissing a pro se complaint the district court must provide a pro se litigant notice
of the deficiencies within the complaint to ensure that the litigant uses the
opportunity to amend effectively. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.
1992).
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III.
DISCUSSION
A. 	Plaintiff’s Asserts A Section 1983 Claim
Defendants correctly point out that Plaintiff’s Complaint does not directly cite
42 U.S.C. § 1983. 	However, in denying Plaintiff’s motion to remand, the Court
“construed Plaintiff’s claim that state prison officers wrongly denied him access to
legal materials for his state criminal and habeas cases as a 42 U.S.C. § 1983 claim
for a violation of the First Amendment right to access the courts.” 	Dkt. No. 11.
Having construed the Complaint as seeking relief under § 1983, the Court declines
to dismiss Plaintiff’s civil rights claim because it does not directly reference that
statute.
B. 	The Complaint Does Not State A Claim For Right To Access The Courts
Plaintiff alleges Defendants deprived him of access to and possession of the
CD containing BWC footage from IPD and thereby interfered with Plaintiff’s right
to access the courts. 	Defendants contend the Complaint does not allege that
Plaintiff suffered an injury. The Court agrees with Defendants.
“Under the First Amendment, a prisoner has both a right to meaningful
access to the courts and a broader right to petition the government for a redress
of his grievances.” Silva v. Di Vittorio, 658 F. 3d 1090, 1101-02 (9th Cir. 2011)
overruled on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015). This
right forbids states from erecting barriers that impede the right of access of
incarcerated persons. Id. at 1102. As such, “prisoners have a right under the First
and Fourteenth Amendments to litigate claims challenging their sentences or the
conditions of their confinement to conclusion without active interference by prison
officials. “ Id. at 1103 (emphasis in original).
“Claims for denial of access to the courts may arise from systemic official
action that frustrates a plaintiff in preparing and filing suits at the present time
(known as a forward-looking claim), or from official acts resulting in the loss of a
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claim or suit that cannot now proceed (a backward-looking claim).” 	Mascorro v.
Cnty. of San Diego, No. 21-CV-2012-RSH-DDL, 2025 WL 3251602, at *5 (S.D.
Cal. Nov. 21, 2025).
A plaintiff alleging a violation of the right to access the court “must identify a
‘nonfrivolous,’ ‘arguable’ underlying claim,” and “the underlying cause of action,
whether anticipated or lost, is an element that must be described in the complaint,
just as much as allegations must describe the official acts frustrating the litigation.”
Christopher v. Harbury, 536 U.S. 403, 415 (2002). 	“Like any other element of an
access 	claim, 	the underlying cause of 	action and 	its 	lost 	remedy 	must 	be
addressed by allegations in the complaint sufficient to give fair notice to a
defendant.” Id. at 416. Thus, the complaint must allege the “predicate claim” “well
enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the
underlying claim is more than hope.” Id. 	See also id. at 417-18 (“the complaint
should state the underlying claim 	in 	accordance with Federal Rule of Civil
Procedure 8(a), just as if it were being independently pursued, and a like plain
statement should describe any remedy available under the access claim and
presently unique to it.”).
In addition, a plaintiff “must allege ‘actual injury’ as the threshold requirement
to any access to courts claim.” 	Thompson v. Taboada, No. 25-CV-01921-AJB-
SBC, 2025 WL 3014552, at *5 (S.D. Cal. Oct. 28, 2025). 	“An ‘actual injury’ is
“actual prejudice with respect to contemplated or existing litigation, such as the
inability to meet a filing deadline or to present a claim.” Id. The “[f]ailure to show
that a ‘non-frivolous legal claim had been frustrated’ is fatal.” Alvarez v. Hill, 518
F.3d 1152, 1155 n.1 (9th Cir. 2008). As the Ninth Circuit has explained:
To pursue an access claim at the pleading stage, [the plaintiff] must
show that he has suffered an “actual injury” by plausibly alleging that
a prison official interfered with his “capability of bringing contemplated
challenges to sentences or conditions of confinement before the
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courts.” Lewis v. Casey, 518 U.S. 343, 349, 353 n.3, 356 [] (1996).
Satisfying this standard requires pleading that a prison official took
some action that prevented [the plaintiff] from having “‘meaningful
access’ to the courts.” Phillips v. Hust, 588 F.3d 652, 655–56 (9th Cir.
2009) (quoting Lewis, 518 U.S. at 351 []). Simply alleging a wrongful
act in vacuo will not suffice. Lewis, 518 U.S. at 351 []. The “right at
issue” is not “the right to a law library” or the right to receive one’s
mail; it is the right to access the courts to press a claim. Id. at 350 [].
Thus, 	an 	“inmate 	... 	must 	... 	demonstrate 	that 	the 	alleged
shortcomings ... hindered his efforts to pursue a legal claim.” Id. at
351.
In addition to pleading an underlying claim, a backwards-looking
access 	claim 	must 	plead 	a 	remedy 	that 	“may 	be 	awarded 	as
recompense but [is] not otherwise available in some suit that may yet
be brought.” Christopher v. Harbury, 536 U.S. 403, 415 [] (2002).
Penton v. Pool, 724 F. App'x 546, 548-49 (9th Cir. 2018).
Here, Plaintiff’s Complaint does not sufficiently allege an access to courts
claim under the foregoing standards:
First, the Complaint does not adequately “identify a ‘nonfrivolous,’ ‘arguable’
underlying claim” that Plaintiff contends he was seeking to pursue. 	Christopher,
536 U.S. at 	415. Plaintiff’s Complaint identifies a pending “1054.9 Discovery
Motion” in an unidentified case in the Los Angeles Superior Court. Plaintiff also
asserts in his Complaint that he was “preparing to file a writ of habeas and Pitchess
motion against Officer Paul Devlin of the [IPD].” Dkt. No. 1-3 at 7. 	It is unclear if
Plaintiff alleges these were two separate predicate claims or a singular predicate
claim in which Plaintiff was seeking relief. Therefore, there are insufficient facts
pled showing that Plaintiff’s predicate claims are nonfrivolous and arguable. In any
amended complaint, Plaintiff must plead facts describing “the underlying cause of
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action 	and 	its 	lost 	remedy” 	sufficient 	“to 	give 	fair 	notice” 	to 	Defendants.
Christopher, 536 U.S. at 416 (2002).
Second, Plaintiff’s Complaint does not allege an “actual injury” caused by
Defendants’ conduct. 	As discussed above, an actual injury is “actual prejudice
with respect to contemplated or existing litigation, such as the inability to meet a
filing deadline or to present a claim.” Thompson, 2025 WL 3014552, at *5. Plaintiff
generally alleges that Defendants refused to give him the bodycam footage CD
and instead returned the CD to IPD. However, Plaintiff does not allege any facts
as 	to 	how 	Defendants’ 	actions 	interfered 	with 	his 	“capability 	of 	bringing
contemplated challenges to sentences or conditions of confinement before the
courts.” Lewis, 518 U.S. at 349. Plaintiff contends he was “preparing to file a writ
of habeas and Pitchess motion” and that there was a pending “1054.9 Discovery
Motion,” but he does not allege facts showing that Defendants’ conduct prevented
him from bringing these motions or that he was unable to press his claims within
the existing unidentified predicate matter for the discovery motion due to the
Defendants’ actions. 	As a result, Plaintiff has failed to sufficiently allege official
acts that frustrated his underlying cause of action or litigation. 	In any amended
complaint, Plaintiff must allege facts demonstrating “that a prison official took some
action that prevented [him] from having meaningful access to the courts.” Penton,
724 F. App'x at 549.
Third, the Court concludes that Plaintiff’s Complaint does plead a remedy
that “may be awarded as recompense but [is] not otherwise available in some suit
that may yet be brought.” 	Christopher, 536 U.S. at 415. 	Plaintiff prays for
$1,500,000 in damages as recompense for Defendants’ conduct. “These are
money damages that may be awarded in a successful access-to-courts § 1983
action, and are not clearly duplicable through another type of action.” Penton, 724
F. App'x at 550.
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Because Plaintiff has failed to plead allegations sufficient to support a right
of access to the court claim, the Court RECOMMENDS that Defendant’s Motion to
Dismiss Plaintiff’s right of access to the courts claim against all Defendants be
GRANTED WITH LEAVE TO AMEND.
B. 	IIED claim
Plaintiff’s 	second 	cause 	of 	action 	alleges 	Defendants 	“intentional[ly]
interfered with evidence sent to Plaintiff bodycam video also intentionally inflicted
emotional/physical 	distress.” 	Id. 	at 	8. 	Given 	that 	the 	language 	regarding
Defendants’ interference with evidence is duplicative of Plaintiff’s right to access
the courts claim, the Court construes this claim as alleging IIED.
“Under California law, a prima facie case of IIED requires the following:
(1) extreme and outrageous conduct by the defendant; (2) with the intention of
causing, or reckless disregard of the probability of causing emotional distress;
(3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and
proximate causation of the emotional distress by defendant’s outrageous conduct.”
Victoria v. City of San Diego, 326 F. Supp. 3d 1003, 1021 (S.D. Cal. 2018). Taking
the allegations of Plaintiff’s Complaint in their entirety, and in the light most
favorable to Plaintiff, Plaintiff has failed to allege facts in support of the elements
for an IIED claim. Plaintiff does not sufficiently plead extreme and outrageous
conduct by any of the Defendants or their intent or reckless disregard. Further,
aside from conclusory allegations that he has suffered from IIED, Plaintiff does not
allege facts indicating that he has suffered severe or extreme emotional distress
due 	to 	the 	Defendants’ 	conduct. 	The 	Court 	therefore 	RECOMMENDS 	that
Defendant’s Motion to Dismiss Plaintiff’s IIED claim against all Defendants be
GRANTED WITH LEAVE TO AMEND.
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/ / /
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IV.
CONCLUSION AND RECOMMENDATION
For all the foregoing reasons, IT IS HEREBY RECOMMENDED that the
District Judge issue an Order:
(1) Approving and adopting this Report and Recommendation; and
(2) Granting Defendants’ Motion to Dismiss [Dkt. No. 2] and holding that:
(A) Plaintiff’s right of access to the courts claim is dismissed with leave to
amend; and
(C) Plaintiff’s IIED claim is dismissed with leave to amend.
IT IS HEREBY ORDERED that any written objections to this Report must be
filed with the Court and served on all parties no later than January 12, 2026. The
document should be captioned “Objections to Report and Recommendation.”
IT IS FURTHER ORDERED that any reply to the objections shall be filed
with the Court and served on all parties no later than January 26, 2026. The parties
are advised that the failure to file objections within the specified time may waive
the right to raise those objections on appeal of the Court’s order. See Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998).
IT IS SO ORDERED.
Dated: December 29, 2025
Hon. David D. Leshner
United States Magistrate Judge
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