1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL C. RAMSEY, No. 2:23-cv-02174-CKD P 12 Plaintiff, 13 v. ORDER 14 A. LANE, et al., 15 Defendants. 16 17 Plaintiff is a California prisoner proceeding pro se with an action for violation of civil 18 rights under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 19 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Screening Requirement 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 7 II. Allegations in the Amended Complaint 8 Before the court could screen plaintiff’s complaint constructively filed on October 2, 9 2023, plaintiff filed a first amended complaint. Because the amended complaint supersedes the 10 original complaint, the court will proceed to screen the first amended complaint. 11 In the amended complaint, plaintiff alleges that defendants Mahenski, Yderraga, and 12 Harrod all refused to deliver his incoming mail consisting of 9 envelopes with 20 photographs 13 each because they contained an “unidentified substance.” Plaintiff describes the unidentified 14 substance as a black Sharpie marker that was used to obscure nudity in the photographs. Plaintiff 15 alleges that there is no legitimate penological interest achieved in denying him this incoming 16 mail. As a result, plaintiff alleges that these defendants violated his First Amendment right to 17 receive mail. 18 Plaintiff also names two additional defendants in the amended complaint who are 19 employed at the Office of Administrative Appeals: defendants Lane and Moseley who denied 20 plaintiff’s subsequent administrative grievance concerning the denial of his mail. 21 III. Legal Standards 22 A. Linkage 23 The civil rights statute requires that there be an actual connection or link between the 24 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 25 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 26 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 27 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 28 in another's affirmative acts or omits to perform an act which he is legally required to do that 1 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 2 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 3 link each named defendant with some affirmative act or omission that demonstrates a violation of 4 plaintiff's federal rights. 5 B. Grievances 6 The existence of a prison grievance procedure establishes a procedural right only and 7 “does not confer any substantive right upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 8 (8th Cir. 1993) (citation omitted); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 9 (no liberty interest in processing of appeals because no entitlement to a specific grievance 10 procedure). This means that a prison official’s action in reviewing an inmate grievance cannot 11 serve as a basis for liability under Section 1983. Buckley, 997 F.2d at 495. “Only persons who 12 cause or participate in the violations are responsible. Ruling against a prisoner on an 13 administrative complaint does not cause or contribute to the violation. A guard who stands and 14 watches while another guard beats a prisoner violates the Constitution; a guard who rejects an 15 administrative complaint about a completed act of misconduct does not.” George v. Smith, 507 16 F.3d 605, 609-10 (7th Cir. 2007) (citations omitted). 17 IV. Analysis 18 Having conducted the required screening with respect to plaintiff’s amended complaint 19 (ECF No. 5), the court finds that plaintiff may proceed on the First Amendment claim against 20 defendants Mahenski, Yderraga, and Harrod. With respect to defendants Lane and Moseley, the 21 allegations do not amount to claims upon which plaintiff may proceed because they merely 22 reviewed plaintiff’s subsequent administrative grievance challenging the denial of his incoming 23 mail. See George v. Smith, 507 F.3d at 609. 24 At this point, plaintiff has two options. Plaintiff may: 1) proceed immediately on the 25 claim against defendants Mahenski, Yderraga, and Harrod; or 2) attempt to cure the deficiencies 26 with respect to the remaining two defendants by filing a second amended complaint. See Lopez v. 27 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (finding that district courts must afford 28 pro se litigants an opportunity to amend to correct any deficiency in their complaints). If plaintiff 1 elects to proceed on the claims found cognizable in this screening order, the court will construe 2 plaintiff’s election as consent to dismiss defendants Lane and Moseley pursuant to Rule 41(a) of 3 the Federal Rules of Civil Procedure. 4 V. Leave to Amend 5 If plaintiff chooses to amend the complaint, he must demonstrate how the conditions 6 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 7 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 8 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 9
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL C. RAMSEY, No. 2:23-cv-02174-CKD P 12 Plaintiff, 13 v. ORDER 14 A. LANE, et al., 15 Defendants. 16 17 Plaintiff is a California prisoner proceeding pro se with an action for violation of civil 18 rights under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 19 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Screening Requirement 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 7 II. Allegations in the Amended Complaint 8 Before the court could screen plaintiff’s complaint constructively filed on October 2, 9 2023, plaintiff filed a first amended complaint. Because the amended complaint supersedes the 10 original complaint, the court will proceed to screen the first amended complaint. 11 In the amended complaint, plaintiff alleges that defendants Mahenski, Yderraga, and 12 Harrod all refused to deliver his incoming mail consisting of 9 envelopes with 20 photographs 13 each because they contained an “unidentified substance.” Plaintiff describes the unidentified 14 substance as a black Sharpie marker that was used to obscure nudity in the photographs. Plaintiff 15 alleges that there is no legitimate penological interest achieved in denying him this incoming 16 mail. As a result, plaintiff alleges that these defendants violated his First Amendment right to 17 receive mail. 18 Plaintiff also names two additional defendants in the amended complaint who are 19 employed at the Office of Administrative Appeals: defendants Lane and Moseley who denied 20 plaintiff’s subsequent administrative grievance concerning the denial of his mail. 21 III. Legal Standards 22 A. Linkage 23 The civil rights statute requires that there be an actual connection or link between the 24 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 25 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 26 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 27 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 28 in another's affirmative acts or omits to perform an act which he is legally required to do that 1 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 2 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 3 link each named defendant with some affirmative act or omission that demonstrates a violation of 4 plaintiff's federal rights. 5 B. Grievances 6 The existence of a prison grievance procedure establishes a procedural right only and 7 “does not confer any substantive right upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 8 (8th Cir. 1993) (citation omitted); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 9 (no liberty interest in processing of appeals because no entitlement to a specific grievance 10 procedure). This means that a prison official’s action in reviewing an inmate grievance cannot 11 serve as a basis for liability under Section 1983. Buckley, 997 F.2d at 495. “Only persons who 12 cause or participate in the violations are responsible. Ruling against a prisoner on an 13 administrative complaint does not cause or contribute to the violation. A guard who stands and 14 watches while another guard beats a prisoner violates the Constitution; a guard who rejects an 15 administrative complaint about a completed act of misconduct does not.” George v. Smith, 507 16 F.3d 605, 609-10 (7th Cir. 2007) (citations omitted). 17 IV. Analysis 18 Having conducted the required screening with respect to plaintiff’s amended complaint 19 (ECF No. 5), the court finds that plaintiff may proceed on the First Amendment claim against 20 defendants Mahenski, Yderraga, and Harrod. With respect to defendants Lane and Moseley, the 21 allegations do not amount to claims upon which plaintiff may proceed because they merely 22 reviewed plaintiff’s subsequent administrative grievance challenging the denial of his incoming 23 mail. See George v. Smith, 507 F.3d at 609. 24 At this point, plaintiff has two options. Plaintiff may: 1) proceed immediately on the 25 claim against defendants Mahenski, Yderraga, and Harrod; or 2) attempt to cure the deficiencies 26 with respect to the remaining two defendants by filing a second amended complaint. See Lopez v. 27 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (finding that district courts must afford 28 pro se litigants an opportunity to amend to correct any deficiency in their complaints). If plaintiff 1 elects to proceed on the claims found cognizable in this screening order, the court will construe 2 plaintiff’s election as consent to dismiss defendants Lane and Moseley pursuant to Rule 41(a) of 3 the Federal Rules of Civil Procedure. 4 V. Leave to Amend 5 If plaintiff chooses to amend the complaint, he must demonstrate how the conditions 6 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 7 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 8 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 9 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 10 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 11 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 12 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 13 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 14 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 15 complaint be complete in itself without reference to any prior pleading. This is because, as a 16 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 17 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 18 longer serves any function in the case. Therefore, in an amended complaint, as in an original 19 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 20 VI. Plain Language Summary for Pro Se Party 21 The following information is meant to explain this order in plain English and is not 22 intended as legal advice. 23 Some of the allegations in the complaint state claims for relief against the defendants, and 24 some do not. You must decide if you want to (1) proceed immediately on the First Amendment 25 claim against defendants Mahenski, Yderraga, and Harrod; or, 2) amend the complaint to fix the 26 problems identified in this order with respect to defendants Lane and Moseley. Once you decide, 27 you must complete the attached Notice of Election form by checking only one box and 28 returning it to the court. ] Once the court receives the Notice of Election, it will issue an order telling you what you 2 || need to do next. If you do not return this Notice, the court will order service of the complaint 3 || only on the claims found cognizable in this screening order and will recommend dismissing 4 || defendants Lane and Moseley. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiffs motion for leave to proceed in forma pauperis (ECF No. 2) is granted. 7 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 8 | shall be collected and paid in accordance with this court’s order to the Director of the California 9 || Department of Corrections and Rehabilitation filed concurrently herewith. 10 3. Plaintiff granted 21 days within which to complete and return the attached form 11 | notifying the court whether he wants to proceed on the claims identified in this order or file an 12 || amended complaint in an attempt to cure the deficiencies with respect to defendants Lane and 13 || Moseley. 14 4. If plaintiff elects to proceed only on the claims found cognizable in this screening 15 || order, the court will construe plaintiff's election as consent to dismiss defendants Lane and 16 || Moseley pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. 17 5. If plaintiff fails to return the attached Notice of Election within the time provided, this 18 || case will proceed only on the cognizable claims identified above. 19 || Dated: December 6, 2023 a8 } it | / } a ini 20 CAROLYNK. DELANEY 21 UNITED STATES MAGISTRATE JUDGE 22 23 24
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6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 DANIEL C. RAMSEY, No. 2:23-cv-02174-CKD 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 A. LANE, et al., 15 Defendants. 16 Check one: 17 _____ Plaintiff wants to proceed immediately on the First Amendment claim against defendants 18 Mahenski, Yderraga, and Harrod. By proceeding only on these cognizable claims, plaintiff 19 understands that he is agreeing to voluntarily dismiss without prejudice defendants Lane and 20 Moseley pursuant to Federal Rule of Civil Procedure 41(a). 21 OR 22 _____ Plaintiff wants time to file a second amended complaint. 23 DATED: 24
27 Plaintiff’s Signature 28