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Jose Hernandez, Cdcr #K-86923 v. R. Cobb

March 19, 2012

JOSE HERNANDEZ, CDCR #K-86923,
PLAINTIFF,
v.
R. COBB,
DEFENDANTS.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER:

(1) DISMISSING DEFENDANT COBB; AND (2) DIRECTING U.S. MARSHAL TO SESSION; JOHN DOE ONE; EFFECT SERVICE OF FIRST AMENDED COMPLAINT PURSUANT TO & 28 U.S.C. § 1915(d) FED.R.CIV.P. 4(c)(3)

I. Procedural History

On August 24, 2011, Plaintiff, a state inmate currently incarcerated at the California Rehabilitation Center in Norco, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, along with a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a).

This Court granted Plaintiff's Motion to Proceed IFP, found that he had stated a claim as to Defendants Session and John Doe One, but failed to state a claim against R. Cobb. See Dec. 9, 2011 Order at 4-5. Plaintiff was given the opportunity to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court or proceed as to those claims that survived screening. Id. at 4. Plaintiff chose to file an Amended Complaint which he did on January 3, 2012.

II. SCREENING PURSUANT TO 28U.S.C.§§1915(e)(2)&1915A(b)

The Prison Litigation Reform Act ("PLRA") requires the Court to review Plaintiff's Amended Complaint sua sponte before service, and dismiss the entire action, or any part of his Amended Complaint, if it is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See 28 U.S.C. § 1915(e)(2)(B) and § 1915A.

While the Court has already found that Plaintiff's claims against Session and John Doe One survive screening, see Dec. 9, 2011 Order at 3 (ECF No. 3), the claims against Defendant Cobb must be dismissed for failing to state a claim. In his First Amended Complaint, Plaintiff continues to seek to hold Defendant Cobb liable for the manner in which he responded to Plaintiff's administrative grievances. As the Court previously informed Plaintiff, he cannot state a Fourteenth Amendment due process claim arising from dissatisfaction with the inmate administrative grievance process.

The Fourteenth Amendment provides that: "[n]o state shall ... deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. "The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569 (1972). State statutes and prison regulations may grant prisoners liberty or property interests sufficient to invoke due process protection. Meachum v. Fano, 427 U.S. 215, 223-27 (1976). To state a procedural due process claim, Plaintiff must allege: "(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of process." Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000).

However, the Ninth Circuit has held that prisoners have no protected property interest in an inmate grievance procedure arising directly from the Due Process Clause. See Ramirez v. Galaza, 334 F.3d 850, 869 (9th Cir. 2003) ("[I]nmates lack a separate constitutional entitlement to a specific prison grievance procedure") (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (finding that the due process clause of the Fourteenth Amendment creates "no legitimate claim of entitlement to a [prison] grievance procedure"))..

In addition, Plaintiff has failed to plead facts sufficient to show that prison official deprived him of a protected liberty interest by allegedly failing to respond to his prison grievances in a satisfactory manner. While a liberty interest can arise from state law or prison regulations, Meachum, 427 U.S. at 223-27, due process protections are implicated only if Plaintiff alleges facts to show that Defendants: (1) restrained his freedom in a manner not expected from his sentence, and (2) "impose[d] atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995); Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997). Plaintiff pleads nothing to suggest how the allegedly inadequate review and consideration of his inmate grievances resulted in an "atypical" and "significant hardship." Sandin, 515 U.S. at 483-84.

Plaintiff also suggests that the actions of Defendant Cobb have interfered with his right to access to the Courts. To establish a violation of the right to access to the courts, a prisoner must allege facts sufficient to show that: (1) a non-frivolous legal attack on his conviction, sentence, or conditions of confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An "actual injury" is defined as "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim." Id. at 348.

Here, Plaintiff has failed to alleged any actions with any particularity that have precluded his pursuit of a non-frivolous direct or collateral attack upon either his criminal conviction or sentence or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to access to the courts protects only an inmate's need and ability to "attack [his] sentence[], directly or collaterally, and ... to challenge the conditions of [his] confinement."); see also Christopher v. Harbury, 536 U.S. 403, 415 (2002) (the non-frivolous nature of the "underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint, just as much as allegations must describe the official acts frustrating the litigation."). Moreover, Plaintiff has not alleged facts sufficient to show that he has been actually injured by any specific defendant's actions. Lewis, 518 U.S. at 351.

Plaintiff has not alleged that "a complaint he prepared was dismissed," or that he was "so stymied" by any individual defendant's actions that "he was unable to even file a complaint," direct appeal or petition for writ of habeas corpus that was not "frivolous." Lewis, 518 U.S. at 351; Christopher, 536 U.S. at 416 ("like any other element of an access claim[,] ... the predicate claim [must] be described well enough to apply the 'non-frivolous' test and to show that the 'arguable' nature of the underlying claim is more than hope."). ...


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