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Anthony Penton v. S. Hubbard

July 11, 2011

ANTHONY PENTON, PLAINTIFF,
v.
S. HUBBARD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action.

28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 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 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. 28 U.S.C. § 1915(b)(2).

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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, 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." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Plaintiff has filed a 47 page complaint, including 131 numbered paragraphs, while naming 12 defendants and an unspecified number Doe defendants. Although unclear, at first glance it appears plaintiff is pursuing two causes of action, both for retaliation. On closer reading, it appears plaintiff may be attempting to challenge a prison disciplinary which he alleges was lodged against him in retaliation for plaintiff filing a staff complaint alleging abuse of force. Plaintiff also claims the prison disciplinary was untimely filed and that plaintiff was wrongfully housed in administrative segregation ("ad seg") for 36 months without due process. Plaintiff claims defendant Bradford and Marrow "colluded" to deprive plaintiff of access to the law library, violating plaintiff's access to the courts. Although couched in terms of retaliation, it appears plaintiff seeks relief for interference or withholding of plaintiff's mail and/or violating plaintiff's right of access to the courts.

In his second cause of action, plaintiff alleges his mail was wrongfully withheld from him for 8 months, and that an additional 40 days elapsed upon his return from out-to-court status before his mail was returned to plaintiff. Plaintiff's mail was allegedly withheld from November 17, 2007, until April 28, 2008. (Dkt. No. 1 at 32.) Plaintiff also contends that on September 9, 2008, defendant G. Savas wrongfully returned plaintiff's annual package in violation of California Department of Corrections and Rehabilitation ("CDCR") regulations and without prior notice to plaintiff. (Dkt. No. 1 at 33.)

Plaintiff seeks injunctive relief and monetary damages.

First, plaintiff complains of conduct by prison officials at California State Prison, Sacramento ("CSP-SAC"). At the time plaintiff filed the instant complaint, he was housed at the Salinas Valley State Prison in Soledad, and was then transferred to the California State Prison in Corcoran. Because plaintiff is no longer housed at CSP-SAC, his claims for injunctive relief against prison officials at California State Prison-Sacramento are moot. Where a prisoner is seeking injunctive relief with respect to conditions of confinement, the prisoner's transfer to another prison renders the request for injunctive relief moot, unless there is some evidence of an expectation of being transferred back. See Prieser v. Newkirk, 422 U.S. 395, 402-03 (1975); Johnson v. Moore, 948 F. 2d 517, 519 (9th Cir. 1991) (per curiam). Plaintiff has raised no allegation suggesting that plaintiff will be transferred back to CSP-SAC. Therefore, plaintiff should not renew his requests for injunctive relief in any amended complaint.

Second, the screening of plaintiff's complaint was made difficult by plaintiff's reciting every alleged slight against him, as well as incorporating specific actions taken on plaintiff's grievances, some of which bear no relevance to plaintiff's potentially cognizable civil rights claims. Plaintiff appears to allege that some defendants are liable based solely on their role in the inmate grievance process. However, prisoners have no stand-alone due process rights related to the administrative grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no liberty interest entitling inmates to a specific grievance process). Put another way, prison officials are not required under federal law to process inmate grievances in a specific way or to respond to them in a favorable manner. Because there is no right to any particular grievance process, plaintiff cannot state a cognizable civil rights claim for a violation of his due process rights based on allegations that prison officials ignored or failed to properly process grievances. See, e.g., Wright v. Shannon, 2010 WL 445203 at *5 (E.D. Cal. Feb.2, 2010) (plaintiff's allegations that prison officials denied or ignored his inmate appeals failed to state a cognizable claim under the First Amendment); Walker v. Vazquez, 2009 WL 5088788 at *6-7 (E.D. Cal. Dec.17, 2009) (plaintiff's allegations that prison officials failed to timely process his inmate appeals failed to a state cognizable under the Fourteenth Amendment); Towner v. Knowles, 2009 WL 4281999 at *2 (E.D. Cal. Nov.20, 2009) (plaintiff's allegations that prison officials screened out his inmate appeals without any basis failed to indicate a deprivation of federal rights); Williams v. Cate, 2009 WL 3789597 at *6 (E.D. Cal. Nov.10, 2009) ("Plaintiff has no protected liberty interest in the vindication of his administrative claims."). Therefore, plaintiff shall omit allegations concerning the handling of administrative appeals, and details concerning exhaustion of administrative appeals, in particular those unrelated to cognizable civil rights claims, as described more fully below, from any amended complaint.

The Clerk of the Court is directed to send plaintiff the form for filing a civil rights complaint. In McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996), the Ninth Circuit Court of Appeal upheld the dismissal of a complaint it found to be "argumentative, prolix, replete with redundancy, and largely irrelevant. It consists largely of immaterial background information." The court observed the Federal Rules require that a complaint consist of "simple, concise, and direct" averments. Id. As a model of ...


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