United States District Court, N.D. California
November 1, 2005.
HENRY J. LUGO, Plaintiff(s),
JEANNE S. WOODFORD, et al., Defendant(s).
The opinion of the court was delivered by: CHARLES BREYER, District Judge
ORDER OF DISMISSAL (Doc # 2)
Plaintiff, a prisoner at Salinas Valley State Prison ("SVSP")
and frequent litigant in federal court, has filed a pro se civil
rights complaint under 42 U.S.C. § 1983 alleging that the
grievance process of the California Department of Corrections
("CDC") "does not function properly." Plaintiff seeks an order
compelling CDC officials to answer his grievances "properly and
timely," and also seeks to proceed in forma pauperis under
28 U.S.C. § 1915.
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). 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).
B. Legal Claims
Plaintiff's allegations that prison officials have failed to
answer his "weekly" inmate appeals "properly and timely" fail to
state a claim because it is well-established that there is no
constitutional right to a prison administrative appeal system.
See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). And a
state's creation of a prison administrative appeal system does
not implicate a liberty interest protected by the Due Process
Clause. See Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th
Cir. 1996) (prison appeal process 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). Accordingly, a prison official's
failure to process an inmate appeal, or to "properly and timely"
process an appeal, is not actionable under § 1983. See id.
For the foregoing reasons, plaintiff's request to proceed in
forma pauperis (doc # 2) is DENIED and the complaint is DISMISSED
for failure to state a claim upon which relief may be granted.
See 28 U.S.C. § 1915A(b).
The clerk shall enter judgment in accordance with this order,
terminate all pending motions as moot, and close the file. No fee
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