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Thomas v. Evans

November 2, 2009

ERIC A. THOMAS, PLAINTIFF,
v.
M.S. EVANS, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 72-302 and 28 U.S.C. § 636(b)(1).

Plaintiff has submitted an in forma pauperis application that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma pauperis.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. §§ 1914(a) & 1915(b)(1). An initial partial filing fee of $9.12 will be assessed by this order. See 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C. § 1915(b)(2).

I. Screening Requirement

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. See 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 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

II. Plaintiff's Complaint

Plaintiff claims that his due process rights were violated when defendants failed to timely respond to his inmate grievances. Plaintiff alleges that he submitted grievances seeking an alternative test for tuberculosis screening. Plaintiff also claims that he was subjected to cruel and unusual punishment when he was not allowed to choose among the method for his tuberculosis testing. Lastly, plaintiff claims that defendants' failure to respond to his grievances in this regard demonstrates defendants' "deliberate indifference toward the plaintiff constituting a form of cruel and unusual punishment[.]" (Compl. at 5*fn1 ) (emphasis in original).

III. Discussion

A. Failure to Respond to Grievances

Plaintiff contends that defendants' failure to respond in a timely fashion to his grievances violates his due process rights. Plaintiff's allegations in this regard fail to state a cognizable cause of action. Prisoners do not have a "separate constitutional entitlement to a specific prison grievance procedure." Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Even the non-existence of, or the failure of prison officials to properly implement an administrative appeals process within the prison system does not raise constitutional concerns. Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also, Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991); Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) ("[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment."). State regulations give rise to a liberty interest protected by the Due Process Clause of the federal constitution only if those regulations pertain to "freedom from restraint" that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). Further, while prisoners have a First Amendment right to file prison grievances, they do not have a right to any particular response thereto. McDonald v. Smith, 472 U.S. 479, 482 (1985); Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995); Apple v. Glenn, 183 F.3d 477, 479-80 (6th Cir. 1999) (holding that plaintiff who alleged public officials violated his First Amendment right to petition the government by not responding to his letters or taking the actions requested therein failed to state a claim). The California Code of Regulations, title 15 section 3084, "simply require[s] the establishment of a procedural structure for reviewing prisoner complaints and sets forth no substantive standards; instead, they provide for flexible appeal time limits, and, at most, that no reprisal shall be taken against an inmate or parolee for filing an appeal." Seals v. Mitchell, No. C 04-3764 SBA (PR), 2007 WL 1795706, at *4 (N.D. Cal. June 20, 2007) (internal quotation marks and citations omitted). For these reasons, plaintiff's complaint fails to state a cognizable due process claim.

In addition, plaintiff's allegation that defendants' failure to respond to his grievances subjected him to cruel and unusual punishment, fails to state a cognizable claim. Plaintiff has cited no legal authority supporting such a claim under the Eighth Amendment and the court is aware of no such authority.

B. Tuberculosis Testing

Plaintiff also alleges that he was subjected to cruel and unusual punishment when he was not allowed to choose the method of testing used in his screening for tuberculosis. Apparently, plaintiff preferred an alternate method for tuberculosis testing because of his "fear that the injecting of the tuberculosis bacterium into his body can cause some physical harm which can not be determined to any ceratin degree but the mere potential is enough to cause some ...


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