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MILONY v. CDC DIRECTOR

United States District Court, Northern District of California


August 27, 2003

LOUIS MILONY, PLAINTIFF, VS. CDC DIRECTOR; THE STATE OF CALIFORNIA; WARDEN SCRIBBNER; WARDEN A.A. LAMARQUE; AND CORCORAN STATE PRISON AND SALINAS VALLEY STATE PRISON EMPLOYEES, DEFENDANTS

The opinion of the court was delivered by: William Haskell Alsup, District Judge

JUDGMENT

The court has dismissed this prisoner in forma pauperis compliant. A judgment of dismissal with prejudice is entered as to plaintiffs claim regarding administrative appeals. A judgment of dismissal without prejudice is entered as to his claim involving his continued incarceration. Plaintiff shall take nothing by way of his complaint. IT IS SO ORDERED. [ Page 1]

ORDER OF DISMISSAL; DENIAL OF LEAVE TO PROCEED IN FORMA PAUPERIS (Doc 2)
Plaintiff, an inmate at Corcoran State Prison, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis.

DISCUSSION

A. Standard of Review

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the [ Page 2]

color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

B. Legal Claims

1. Administrative appeals

Plaintiff contends that defendants are keeping him "incarcerated with a false abstract." He also complains of the rejection of his administrative appeals, some of which evidently were while he was confined at Salinas Valley State Prison. He asks for damages and an order requiring the warden to release him.

There is no constitutional right to an administrative appeal process. Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Antonelli v. Sheahan. 81 F.3d 1422, 1430 (7th Cir. 1996); Garfield v. Davis, 566 F. Supp. 1069, 1074 (E.D. Pa. 1983); accord Wolff v. McDonnell 418 U.S. 539, 565 (1974) (accepting Nebraska system wherein no provision made for administrative review of disciplinary decisions). In addition, California Code of Regulations, title 15 section 3084, grants state prisoner: only a purely procedural right: the right to have a prison appeal.*fn1 The regulations simply require the establishment of a procedural structure for reviewing prisoner complaints and set forth no substantive standards; instead, they provide for flexible appeal time limits, Cal. Code Regs. tit. 15, § 3084.6, and, at most, that "no reprisal shall be taken against an inmate or parolee for filing an appeal," id. § 3084. l(d). A provision that merely provides procedure requirements, even if mandatory, cannot form the basis of a constitutionally cognizable liberty interest. Smith v. Noonaru 992 F.2d 987, 989(9th Cir. 1993): see also Antonelli, 81 F.3d at 1430 (prison grievance procedure is procedural right that does not give rise to protected liberty interest requiring procedural protections of Due Process Clause); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (same). Plaintiff therefore had no right to due process protections as to his grievances.

Therefore, plaintiffs claims arising from rejection of his administrative appeals, the [ Page 3]

only claims involving Salinas Valley State Prison defendants, will be dismissed. Because there is no way a claim involving rejection of administrative appeals can be amended to state a constitutional claim, the dismissal will be without leave to amend.


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