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Lopez v. Krieg

United States District Court, Ninth Circuit

August 7, 2013

RICHARD LOPEZ, Plaintiff,
v.
J. KRIEG, et al., Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. He has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 and the appointment of counsel. This proceeding was referred to the undersigned by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

I. In Forma Pauperis

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 separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for 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).

II. Screening of Plaintiff's Complaint

The court is required to screen complaints brought by prisoners seeking relief against a government entity or officer or employee of a government 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 pled, 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, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding , 467 U.S. 69, 73 (1984) (citing Conley v. Gibson , 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n , 651 F.2d 1289, 1294 (9th Cir. 1981). 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 Hosp. Trustees , 425 U.S. 738, 740 (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 (1969).

Plaintiff alleges that he was subjected to pain and suffering in violation of the Eighth Amendment after being denied partial dentures at Sierra Conservation Center. ECF No. 1 at 3. Plaintiff names as defendants five individuals whom he alleges were involved in the denial of the inmate appeal he filed at Sierra Conservation Center regarding his need for partial dentures. Id . Plaintiff alleges the denial of treatment was "set off" by first level appeals officer J. Krieg, who incorrectly indicated that plaintiff wanted the partials for cosmetic purposes. Id . J. Krieg also failed to consider or refer to plaintiff's previous inmate appeal from CTF North Soledad State Prison in which his request for partial dentures had been partially granted. Id. at 3, 15. Krieg's actions caused a chain of "negative reactions" that eventually led to the denial of the appeal at the third level of review, and thus the denial of dental treatment. Id . W. Feitcher denied the appeal at the second level "without even considering or mentioning the pain and suffering behind the original granting... at CTF Soledad State Prison." Id . Both Dr. T. McDow and L.D. Zamora "followed suit" without further considering plaintiff's request. Id . Petitioner makes no specific allegations against C. O'Leary.

Inmates can establish an Eighth Amendment violation with respect to medical care if they can prove there has been deliberate indifference to their serious medical needs. Estelle v. Gamble , 429 U.S. 97, 104 (1976). "Dental care is one of the most important medical needs of inmates." Hunt v. Dental Dept. , 865 F.2d 198, 200 (9th Cir. 1989). In order to be found deliberately indifferent to a serious medical need, an official must know of and disregard an excessive risk to inmate health or safety. Farmer v. Brennan , 511 U.S. 825, 832 (1994). Two requirements must be met: (1) the deprivation must be, objectively, sufficiently serious; and (2) the prison official must be, subjectively, deliberately indifferent to inmate health or safety. Id. at 834.

In addition, the Civil Rights Act under which this action was filed requires that there be an actual connection or link between the actions of each named defendant and the deprivation alleged to have been suffered by the plaintiff. 42 U.S.C. § 1983; see also Monell v. Dep't of Social Servs. , 436 U.S. 658 (1978); Rizzo v. Goode , 423 U.S. 362 (1976). "A person subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy , 588 F.2d 740, 743 (9th Cir. 1978). The requisite causal connection can also be established by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." Id. at 743-44.

As set forth, plaintiff alleges the five named defendants were involved in the denial of partial dentures by virtue of their actions in processing or denying his inmate appeal. "[I]nmates lack a separate constitutional entitlement to a specific prison grievance procedure." Ramirez v. Galaza , 334 F.3d 805, 860 (9th Cir. 2003) (citing Mann v. Adams , 855 F.2d 639, 640 (9th Cir. 1988) ("[T]here is no legitimate claim of entitlement to a grievance procedure."). Accordingly, the prison grievance procedure does not confer any substantive constitutional rights upon inmates and actions in reviewing and denying inmate appeals generally do not serve as a basis for liability under section 1983. See id.; George v. Smith, 507 F.3d XXX-XXX-XX (7th Cir. 2007) ("Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation"); Shehee v. Luttrell , 199 F.3d 295, 300 (6th Cir. 1999) (holding that prison officials whose only roles involved the denial of the prisoner's administrative grievances cannot be held liable under section 1983). The Seventh Circuit has observed:

Only persons who cause or participate in the violations are responsible. Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation. A guard who stands and watches while another guard beats a prisoner violates the Constitution; a guard who rejects ...

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