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Miskam v. McAllistr

February 10, 2009

TRAVIS GEORGE MISKAM, PLAINTIFF,
v.
S. MCALLISTR ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER (1) DISMISSING COMPLAINT IN PART WITH LEAVE TO AMEND AND (2) DIRECTING SERVICE

On September 22, 2008, pro se prisoner Plaintiff Travis George Miskam ("Plaintiff") filed a civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Correctional Officer S. McAllister ("McAllister"),*fn1 Chief Inmate Appeals Officer N. Grannis ("Grannis"), Correctional Sergeant M. Keating ("Keating"), Captain / Associate Warden of Central Operations D. Davey ("Davey"), Chief Deputy Warden M. D. McDonald ("McDonald"), Correctional and/or Facility Captain R. Pimentel ("Pimentel"), Appeals Examiner K. J. Allen ("Allen"), Associate Warden of Central Operations R. L. Gower ("Gower"),*fn2 Correctional Sergeant T. Mossinger ("Mossinger"), Chief Inmate Appeals Officer M. Broddrick ("Broddrick"),*fn3 and Warden Tommy Felker ("Felker") (collectively, "Defendants")*fn4 in their official and individual capacities. Based on the following, the court DISMISSES Plaintiff's Complaint in part WITH LEAVE TO AMEND and DIRECTS SERVICE.

I. BACKGROUND

Plaintiff's Complaint sets forth § 1983 claims based upon Defendant HDSP officers' confiscation and refusal to return certain publications and challenges HDSP's underlying policy banning certain publications. While not entirely clear, it appears that Plaintiff also alleges that Defendants mishandled the grievance process by failing to thoroughly examine the confiscated materials, simply "rubber stamping" the denial of his appeals, and refusing to investigate his lost mail. See Compl. at 5(b) ¶ 2, 5(d) ¶¶ 1-8 (claim 3). Plaintiff may also make a claim based upon either the negligent or intentional loss of his mail. See id.

Specifically, Plaintiff alleges that: (1) Defendants Davey, Graniss, Keating, McAllister, McDonald, and Pimentel confiscated and/or refused to return his Resistance magazine pursuant to HDSP practice or policy, id. at 5-5(a) ¶¶ 1-8; (2) Defendants Allen, Davey, Gower, McAllister, McDonald, and Mossinger confiscated and/or refused to return his comic book, Satan Sodomy Baby, pursuant to HDSP practice or policy, id. at 5(b)-5(c) ¶¶ 1-7; (3) Defendants Broddrick, Gower, Grannis, Keating, and McDonald were responsible for the negligent or intentional loss of his mail and failure to properly investigate his grievance regarding the matter, id. at 5(d)-(e) ¶¶ 1-8; (4) Defendants Allen, Broddrick, Davey, Gower, Grannis, Keating, McAllister, McDonald, Mossinger, and Pimentel generally mishandled his grievances, id. at 5-5(e); and (5) Defendant Felker approved the ban on certain publications, thereby denying Plaintiff access to them. Id. at 5(f) ¶¶ 1-2.

II. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1915A(a), the court must screen cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental agency. The court must dismiss a complaint or portion thereof if a plaintiff has raised claims that (1) are legally frivolous or malicious, (2) fail to state a claim upon which relief may be granted, or (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996); Franklin, 745 F.2d at 1227.

The court must construe pro se pleadings liberally and afford the pro se litigant the benefit of any doubt. Morrison v. Hall, 261 F.3d 896, 899 n.2 (9th Cir. 2001); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). "Unless it is absolutely clear that no amendment can cure the defect . . . , a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc).

III. DISCUSSION

Although difficult to discern, Plaintiff appears to make three general allegations: (1) Defendants mishandled his grievances regarding the confiscation and/or access to certain publications; (2) Defendants either intentionally took or negligently lost his mail; and (3) Defendants confiscated or denied him access to certain publications. The court addresses each allegation in turn below.

A. Plaintiff's Claims Based upon Allegations That Certain Defendants Mishandled His Grievances

Liberally construing Plaintiff's Complaint, he alleges that certain Defendants mishandled his grievances by failing to review the publications that were confiscated and "rubber stamping" the denial of his appeals.

Plaintiff's claims, to the extent based on any mishandling of his grievances, are not cognizable in a § 1983 action because there is no constitutional right to a prison administrative appeal or grievance system for California inmates. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (stating that inmates have "no legitimate claim of entitlement to a grievance procedure"); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (finding no liberty interest in processing of appeals because there is no entitlement to a specific grievance procedure); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) ("[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates." (citation and quotation signals omitted)).

In sum, Plaintiff cannot state a claim based on several Defendants' alleged mishandling of his grievances by either failing to examine the confiscated publications or rubber stamping his appeals. The court, therefore, DISMISSES Plaintiff's claims to the extent ...


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