United States District Court, N.D. California
October 12, 2005.
DALE T. CLEMENTS, Plaintiff,
EDWARD J. CADEN, et al., Defendants.
The opinion of the court was delivered by: JEFFREY WHITE, District Judge
ORDER DISMISSING AMENDED COMPLAINT
Plaintiff, a prisoner of the State of California incarcerated
at Salinas Valley State Prison, filed this civil rights
complaint. The Court dismissed the complaint with leave to amend
(docket no. 6), and Plaintiff filed an Amended Complaint (docket
no. 7). The Court finds the Amended Complaint fails to set forth
cognizable claims under 42 U.S.C. § 1983. Accordingly, the Court
will DISMISS the Amended Complaint.
I 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). The Court must identify cognizable claims or dismiss
the complaint, or any portion of the complaint, if the complaint
"is frivolous, malicious, or fails to state a claim upon which
relief may be granted," or "seeks monetary relief from a
defendant who is immune from such relief." Id. § 1915A(b). Pro
se pleadings must be liberally construed. Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements: (1) that a right secured by the Constitution
or laws of the United States was violated, and (2) that the
alleged violation was committed by a person acting under the
color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
II Amended Complaint
To state a claim arising under federal law, it must be clear
from the face of Plaintiff's well-pleaded complaint that there is
a federal question. Easton v. Crossland Mortgage Corp.,
114 F.3d 979, 982 (9th Cir. 1997). While a plaintiff is not required
to plead his evidence "or specific factual details not
ascertainable in advance of discovery," Gibson v. United
States, 781 F.2d 1334, 1340 (9th Cir. 1986), cert. denied,
479 U.S. 1054 (1987), a pleading will not be sufficient to state a
claim under § 1983 if the allegations are mere conclusions,
Kennedy v. H & M Landing, Inc., 529 F.2d 987, 989 (9th Cir.
Plaintiff complains that he has been denied a request to
transfer to another prison facility to be closer to his sister
while there is an illness in the family. This grievance does not
set forth a constitutional violation sufficient to state a claim.
As discussed in the earlier Order Dismissing Complaint with Leave
to Amend, prisoners have no constitutional right to incarceration
in a particular institution. See Olim v. Wakinekona,
461 U.S. 238, 244-48 (1983); Meachum v. Fano, 427 U.S. 215, 223-27
(1976). A prisoner's liberty interests are sufficiently
extinguished by his conviction that the state may generally
confine or transfer him to any of its institutions, to prisons in
another state or to federal prisons, without offending the
Constitution. See Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir.
1985) (citing Meachum, 427 U.S. at 224-25) (intrastate prison
transfer does not implicate Due Process Clause).
Plaintiff also complains that he has been denied a timely
appeal of his transfer request. This grievance also fails to state a claim. As discussed
in this Court's earlier order, there is no constitutional right
to a prison administrative appeal or grievance system. See Mann
v. Adams, 855 F.2d 639, 640 (9th Cir.), cert. denied,
488 U.S. 898 (1988); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430
(7th Cir. 1996). The California Code of Regulations, title 15
section 3084 et seq., grants state prisoners a purely
procedural right: the right to have a prison appeal. A provision
that merely provides procedural requirements, even if mandatory,
cannot form the basis of a constitutionally cognizable liberty
interest. See Smith v. Noonan, 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). A prison official's failure to process
grievances, without more, accordingly is not actionable under §
1983. See Buckley, 997 F.2d at 495. As such, Plaintiff has not
stated a claim regarding the appeal of his grievance.
Plaintiff's Amended Complaint does not allege any violation of
a federally protected right and therefore fails to state a claim
upon which relief may be granted under 42 U.S.C. § 1983.
Accordingly, Plaintiff's claims must be dismissed.
28 U.S.C. § 1915A(b). Cf. Cato v. United States, 70 F.3d 1103, 1106-07 (9th
Cir. 1995) (a complaint that fails to identify any constitutional
or statutory right that was violated, or assert any basis for
federal subject matter jurisdiction or waiver of sovereign
immunity, is frivolous). The Court has already given Plaintiff
leave to amend his original complaint to state a cognizable claim
under § 1983. As it appears Plaintiff cannot cure the defects of
his claims, the Amended Complaint will be dismissed without leave
to amend. CONCLUSION
Plaintiff's Amended Complaint is DISMISSED without leave to
amend. The Clerk shall close the file.
IT IS SO ORDERED.
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