The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. By Order filed on August 9, 2010, the complaint was dismissed with leave to amend. Plaintiff was granted two extensions of time to file an amended complaint. See Docket Nos. 10 & 12. Plaintiff has filed an amended complaint.
As plaintiff was previously informed, the court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 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. 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.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, No. 07-1015, 2009 WL 1361536 at * 12 (May 18, 2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).
Plaintiff in this incarnation of his allegations retains the following as named defendants: California State Prison - Sacramento Warden James Walker; Chief of Inmate Appeals Branch N. Grannis; CSP-Sac Facility Captain/Appeals Examiner R. Pimentel; CSP-Sac Facility Captain O. Lieber; CSP-Sac Associate Warden G. Drummond. Amended Complaint (AC), pp. 1-3. Plaintiff once again seeks damages, including compensatory, nominal and punitive, and injunctive relief for injuries sustained from a fall he experienced, resulting in a broken finger on his left hand, on or about March 15, 2009, while attempting to climb down from the top bunk of his assigned cell at CSP-Sac. Id. at 3. As previously alleged, plaintiff's finger was treated surgically at U.C. Davis Medical Center. Id. Plaintiff claims that pins were inserted and he wore a cast for about a month and that he now has a permanently disfigured finger, permanent scarring and occasional bouts of pain and discomfort. Id.
Plaintiff contends that the fall occurred because he had no ladder to help him climb up or down the top bunk which was about five feet in height and that his request for compensation for pain and suffering, as well as for installation of ladders had been denied. AC, p. 3. Plaintiff essentially seeks to implicate each defendant for denying his appeal and for their actual or constructive awareness of "hazards concerning the unsafe bunks at CSP Sac...." Id. Plaintiff states that each is or should have been aware of the unsafe bunks and the falls and injuries that have occurred due to written complaints and grievances since 2006 and plaintiff includes an exhibit showing that an appeal was denied regarding an injury allegedly sustained in 2006 by another inmate when he slipped and fell from a top bunk at CSP-Sac . Id. & Exhibit C. Plaintiff claims that had the problem been remedied in 2006 or sooner then he experienced his fall that he would not have suffered the injury. Id.
The primary problem for plaintiff remains that his claim that the failure of defendants to provide him with a ladder for his bunk simply does not rise to the level of an Eighth Amendment violation, even in light of at least one prior grievance about a problem with a top bunk identified some three years prior to his own incident. As previously stated, "[p]rison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety." Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000), citing, inter alia, Farmer v. Brennan, 511 U.S. at 832, 114 S. Ct. 1970; Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982). However, [A] prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
Farmer v. Brennan, 511 U.S. at 837, 114 S. Ct. 1970.
Plaintiff does not make the requisite showing of officials having disregarded an excessive risk to inmate safety simply by pointing to an earlier incident of a fall from a bunk bed, and in any event, the claim does not meet the requisite level of implicating an "objectively, sufficiently serious" condition. See, e.g., Robinett v. Correctional Training Facility, 2010 WL 2867696 (N.D. Cal. 2010) ("ladderless bunk beds do not satisfy the objective prong for an Eighth Amendment violation"); Jones v. La. Dept. of Public Safety and Corrections, 2009 WL 1310940, *2 (W.D. La. 2009) (dismissal with prejudice upon screening a complaint from prisoner injured when his foot slipped on cell bars he had to climb to reach his upper bunk because there was no ladder because condition did not satisfy objective prong of Eighth Amendment test); id. at *4 (summarily dismissing request for injunctive relief in the form of compelling prison officials to provide bunk bed ladders); Connolly v. County of Suffolk, 533 F. Supp.2d 236, 241 (D. Mass. 2008), quoting Farmer v. Brennan, at 834, 114 S. Ct. 1970 [internal citation omitted] ("[h]owever unfortunate Connolly's accident, the failure of prison officials to equip his bunk bed with a ladder simply does not amount to a deprivation of 'a minimal civilized measure of life's necessities'"); Armstrong v. Terrebonne Parish Sheriff, 2006 WL 1968887 *6 (E.D. La. 2006) ("[t]he Constitution requires neither ladders for bunk beds nor call boxes to remedy the fall experienced by plaintiff"). The court notes that plaintiff has made no claim that he has been subjected to inadequate medical care for the injury he apparently suffered, nor does there appear to be any basis for one.
With regard to plaintiff's claim against defendants arising from their participation in the inmate appeals process, the gravamen of this claim appears to be their failure to provide ladders for bunk beds based on a prison grievance dating from 2006, as well as their failure to compensate plaintiff for his own injury. Plaintiff has been previously informed that 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 (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"). Specifically, a failure to process a grievance does not state a constitutional violation. Buckley, supra. State regulations give rise to a liberty interest protected by the Due Process ...