1 2 3 4 5 6 7 10 11 JOSEPH E. SMITH, No. 2:19-cv-1605 TLN AC P 12 Plaintiff, 13 v. ORDER 14 S. RICHARDSON, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. By 18 order filed May 5, 2021, the undersigned screened the original complaint and found that it did not 19 state a claim for relief. ECF No. 8. Plaintiff has now filed a first amended complaint. ECF No. 20 11. 21 I. Statutory Screening of Prisoner Complaints 22 The court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 25 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 26 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 27 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 2 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 3 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 4 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 5 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 6 Franklin, 745 F.2d at 1227-28 (citations omitted). 7 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 8 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 9 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 10 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 11 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 12 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 13 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 14 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 15 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 16 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 17 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 18 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 19 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 21 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 22 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 25 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 26 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 27 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 28 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 1 II. First Amended Complaint 2 The complaint alleges that defendants Richardson and De Jesus violated plaintiff’s rights 3 under the Eighth and Fourteenth Amendments by denying him the ability to use the appeals 4 process. ECF No. 11 at 3-4. As a result, he was not able to challenge the designation that he was 5 violent, which affected his security level and conditions of confinement. Id. 6 III. Failure to State a Claim 7 Plaintiff was previously advised that his allegations that defendants violated his Eighth 8 Amendment rights based solely on their cancellation or rejection of his appeals were insufficient 9 to state a claim for relief. ECF No. 8 at 4. He was further advised that in order to state a claim 10 based on the cancellation or rejection of his appeals, he must allege facts showing that the appeals 11 would have alerted defendants to a violation of his constitutional rights that was still in progress 12 and that they had the ability to intervene and did not. Id. Yet as with the original complaint, the 13 first amended complaint makes only general allegations that defendants were deliberately 14 indifferent to plaintiff’s conditions of confinement by interfering with the appeals process. These 15 allegations remain insufficient to show that either defendant was on notice of an ongoing 16 constitutional violation. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations 17 omitted) (vague and conclusory allegations insufficient). There are no specific facts regarding 18 plaintiff’s conditions of confinement such that the court could determine they violated the Eighth 19 Amendment, see Whitley v. Albers, 475 U.S. 312, 319 (1986) (“After incarceration, only the 20 unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden 21 by the Eighth Amendment.” (alteration in original) (citation and internal quotation marks 22 omitted)), nor has plaintiff alleged facts showing how defendants were involved in processing his 23 grievances or what information was contained in his appeals. 24 To the extent plaintiff now attempts to allege a due process violation related to the 25 processing of his grievances, he has no claim for the “loss of a liberty interest in the processing of 26 his appeals . . . because inmates lack a separate constitutional entitlement to a specific prison 27 grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. 28 Adams, 855 F.2d 639, 640 (9th Cir. 1988)). 1 IV.
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1 2 3 4 5 6 7 10 11 JOSEPH E. SMITH, No. 2:19-cv-1605 TLN AC P 12 Plaintiff, 13 v. ORDER 14 S. RICHARDSON, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. By 18 order filed May 5, 2021, the undersigned screened the original complaint and found that it did not 19 state a claim for relief. ECF No. 8. Plaintiff has now filed a first amended complaint. ECF No. 20 11. 21 I. Statutory Screening of Prisoner Complaints 22 The court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 25 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 26 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 27 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 2 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 3 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 4 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 5 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 6 Franklin, 745 F.2d at 1227-28 (citations omitted). 7 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 8 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 9 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 10 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 11 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 12 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 13 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 14 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 15 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 16 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 17 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 18 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 19 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 21 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 22 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 25 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 26 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 27 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 28 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 1 II. First Amended Complaint 2 The complaint alleges that defendants Richardson and De Jesus violated plaintiff’s rights 3 under the Eighth and Fourteenth Amendments by denying him the ability to use the appeals 4 process. ECF No. 11 at 3-4. As a result, he was not able to challenge the designation that he was 5 violent, which affected his security level and conditions of confinement. Id. 6 III. Failure to State a Claim 7 Plaintiff was previously advised that his allegations that defendants violated his Eighth 8 Amendment rights based solely on their cancellation or rejection of his appeals were insufficient 9 to state a claim for relief. ECF No. 8 at 4. He was further advised that in order to state a claim 10 based on the cancellation or rejection of his appeals, he must allege facts showing that the appeals 11 would have alerted defendants to a violation of his constitutional rights that was still in progress 12 and that they had the ability to intervene and did not. Id. Yet as with the original complaint, the 13 first amended complaint makes only general allegations that defendants were deliberately 14 indifferent to plaintiff’s conditions of confinement by interfering with the appeals process. These 15 allegations remain insufficient to show that either defendant was on notice of an ongoing 16 constitutional violation. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations 17 omitted) (vague and conclusory allegations insufficient). There are no specific facts regarding 18 plaintiff’s conditions of confinement such that the court could determine they violated the Eighth 19 Amendment, see Whitley v. Albers, 475 U.S. 312, 319 (1986) (“After incarceration, only the 20 unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden 21 by the Eighth Amendment.” (alteration in original) (citation and internal quotation marks 22 omitted)), nor has plaintiff alleged facts showing how defendants were involved in processing his 23 grievances or what information was contained in his appeals. 24 To the extent plaintiff now attempts to allege a due process violation related to the 25 processing of his grievances, he has no claim for the “loss of a liberty interest in the processing of 26 his appeals . . . because inmates lack a separate constitutional entitlement to a specific prison 27 grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. 28 Adams, 855 F.2d 639, 640 (9th Cir. 1988)). 1 IV. No Leave to Amend 2 Leave to amend should be granted if it appears possible that the defects in the complaint 3 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 4 (9th Cir. 2000) (en banc). However, if, after careful consideration, it is clear that a complaint 5 cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United 6 States, 70 F.3d 1103, 1105-06 (9th Cir. 1995). 7 The undersigned finds that, as set forth above, the complaint fails to state a claim upon 8 which relief may be granted. Plaintiff has already been given an opportunity to amend the 9 complaint and advised what kind of information he needed to provide. However, despite the 10 instruction provided, the amended complaint contains no additional facts, and it does not appear 11 that further amendment would result in a cognizable claim. As a result, leave to amend would be 12 futile and the complaint should be dismissed without leave to amend. 13 V. Plain Language Summary of this Order for a Pro Se Litigant 14 It is being recommended that your complaint be dismissed without leave to amend 15 because there is no due process right to have your appeals processed and you have not provided 16 any facts that would show defendants were aware of a danger to your health or safety and ignored 17 the risk. 19 Accordingly, IT IS HEREBY RECOMMENDED that the first amended complaint be 20 dismissed without leave to amend for failure to state a claim. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 23 after being served with these findings and recommendations, plaintiff may file written objections 24 with the court. Such a document should be captioned “Objections to Magistrate Judges Findings 25 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 26 //// 27 //// 28 //// 1] || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 2 || (9th Cir. 1991). 3 || DATED: June 9, 2021 ' 1/ ~ 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28