IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 7, 2012
DAVID S. MOWATT, PLAINTIFF,
MIKE MCDONALD, ET AL., DEFENDANTS.
Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4). After a dismissal pursuant to 28 U.S.C. § 1915A, plaintiff has filed an amended complaint.
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).
The court finds that for the limited purposes of § 1915A screening, the complaint states a cognizable due process claim against defendants Harrison and St. Andre.
Also named as a defendant is Audette. However, plaintiff intends to impose liability against Audette based solely on Audette's role in processing plaintiff's administrative appeal regarding plaintiff's gang validation proceedings. As the court previously informed plaintiff, see Dckt. No. 5 at 5, there are no constitutional requirements regarding how a grievance system is operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner's claimed loss of a liberty interest in the processing of his appeals does not violate due process because prisoners lack a separate constitutional entitlement to a specific prison grievance system). Despite an opportunity to amend, plaintiff appears to be unable to state a cognizable claim for relief against defendant Audette.
Accordingly, it hereby is ordered that:
1. Defendant Audette is dismissed from this action.
2. Service is appropriate for defendants Harrison and St. Andre.
3. If plaintiff wishes to have the United States Marshal serve the amended complaint on defendants Harrison and St. Andre, he must file a request for leave to proceed in forma pauperis within 30 days from the date of this order. If plaintiff does not file such a request, or if the court denies any such request, plaintiff will be directed to proceed with service without the assistance of the United States Marshal.
4. The Clerk of the Court is directed to mail to plaintiff a form application for leave to proceed in forma pauperis.
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