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David andrews v. J. D. Lozano

November 15, 2012

DAVID ANDREWS,
PLAINTIFF,
v.
J. D. LOZANO, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND ECF No. 13

I. Background

Plaintiff David Andrews ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On May 2, 2012, Plaintiff filed his complaint. On August 29, 2012, Plaintiff filed his first amended complaint. ECF No. 13.

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. Id. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 2 claim upon which relief may be granted." Id. § 1915(e)(2)(B)(ii). 3

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 5 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 6 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 7 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 8 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 9 allegations are accepted as true, legal conclusions are not. Id.

II. Summary of Amended Complaint

Plaintiff was incarcerated at California Substance Abuse Treatment Facility ("CSATF") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names as Defendants J. D. Lozano, Chief of the Inmate Appeals Branch in Sacramento, California for CDCR; Doe Defendants, CDCR employees responsible for the form CDC 602 inmate grievance process; and the CDCR.

Plaintiff alleges the following. On December 6, 2011, Plaintiff received a classification chrono that indicated his custody status and MMS (mandatory minimum score) were increased unfairly. B. Peterson, a Correctional Counselor II at CSATF, interviewed Plaintiff regarding the inmate appeal, even though he was involved with the classification committee decision. Plaintiff contends that Peterson increasing Plaintiff's MMS was retaliatory. Peterson did not allow Plaintiff to provide any evidence and was hostile, arguing with Plaintiff. Plaintiff's appeal was denied. On December 29, 2011, Plaintiff submitted his appeal to the second level of review. On January 11, 2012, the second level of review denied Plaintiff's appeal. On February 29, 2012, Plaintiff submitted the appeal for Director's level review. On April 20, 2012, the Director's level rejected Plaintiff's appeal, pursuant to a non-existent section of Title 15 of the California Code of Regulations.

Plaintiff contends that when he files the relevant supporting documents with his appeal, the documents are withheld by unknown persons, causing the grievance to be rejected. Plaintiff contends that this prevents Plaintiff from exhausting administrative remedies and thus blocks 2 Plaintiff's access to the courts. 3

Plaintiff alleges a violation of the Due Process Clause of the Fourteenth Amendment, and 4 denial of his right to petition the government for redress under the First Amendment. Plaintiff 5 requests as relief: declaratory relief; injunctive relief, ordering CDCR: to process Plaintiff's inmate 6 grievance, to process all future grievances when CDCR withholds the documents, to not use 7 nonexistent code sections, and to not retaliate against Plaintiff; nominal damages; and costs of suit. 8

III. Analysis

A.Due Process

Plaintiff contends that his due process rights were violated because Defendants failed to process his inmate grievance properly according to the California Code of Regulations. Plaintiff fails to state a claim. The existence of an inmate appeals process does not create a due process right upon which Plaintiff may base a claim that he was denied a particular result or that the appeals process was deficient. ...


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