Williams v. Hazel

          ORDER OF PARTIAL SERVICE; DISMISSING CLAIM WITH LEAVE TO AMEND

          HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         On March 7, 2015, plaintiff, an inmate at Pelican Bay State Prison (PBSP), filed a pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff is granted leave to proceed in forma pauperis by separate order. His complaint is now before the Court for review under 28 U.S.C. § 1915A.

         BACKGROUND

         The complaint alleges the following:

         Plaintiff was previously incarcerated at Salinas Valley State Prison ("SVSP") where he was pursuing a pro se civil action in state court for dental malpractice and negligence against California Correctional Healthcare Services. Compl. at 3.^[1] On July 5, 2015, while still incarcerated at SVSP, plaintiff received a June 12, 2015 order in his state court action denying his "petition for late claim filing." Id. Plaintiff had until August 12, 2015 to appeal the order. Compl. at 4. On July 6, 2015, he prepared a notice of appeal and had four copies made. Compl. at 3-4. He intended to mail them out that evening to the state court of appeal. Id. Later in the day, however, plaintiff was informed that he would be transferred to PBSP within the hour and was directed to pack his property. Comp. at 4. When he informed an SVSP correctional officer that he had legal documents to mail out that evening, he was instructed to mail them from PBSP. Id.

         Later that day, plaintiff arrived at Pleasant Valley State Prison ("PVSP") for a "layover." Id. The following day, he arrived at PBSP. Id. Upon arrival he noticed that his property had not arrived with him. Id. Plaintiff spoke with California Department of Corrections and Rehabilitation Transportation Sergeant E. Hazel. Id. Hazel informed plaintiff that plaintiff had "too many boxes, " that the property was left at PVSP, and that it would arrive "in a couple of weeks, maybe a month." Id. When plaintiff informed Hazel that his property included legal documents that needed to be filed, Hazel directed him to file an inmate appeal. Id.

         On July 8, 2015, plaintiff submitted a request form to PBSP Receiving and Release Sergeant B. Davis informing him of the court deadline and requesting that the property be located and delivered to plaintiff. Id. In response, PBSP Receiving and Release Correctional Officer M. Chandler replied that "PBSP has not received any property for you." Id.

         On July 9, 2015, plaintiff filed an inmate appeal, which he forwarded to the PBSP appeals coordinator. Compl. at 4-5. PBSP Associate Government Program Analyst N. Bramucci then forwarded the appeal to the appeals coordinator at PVSP. Id. On July 21, 2015, PVSP Associate Government Program Analyst J. Vierra cancelled the appeal as "resolved, " stating that "On 07-20-15, Sgt. Carr in R & R was contacted. He confirmed your property was sent to PBSP via Golden State Overnight (GSO) on 07-14-15." Compl. at 5. Plaintiff received the notice of cancellation on August 2, 2015, whereupon he resubmitted the appeal to the PBSP appeals coordinator, stating that the issue had not been resolved as his property had still not been issued. Id. N. Bramucci forwarded the appeal back to PVSP on August 3, 2015. Id. On August 13, 2015, J. Vierra again cancelled the appeal stating that he must appeal the cancellation of an appeal by submitting a new appeal. Id.

         Upon receiving the second cancellation, on August 26, 2015, plaintiff filed a new appeal and forwarded it to the appeals coordinator at PVSP. Id. Plaintiff received his property on September 15, 2015, after his state court filing deadline had passed. Compl. at 6.

         On September 21, 2015, J. Vierra interviewed plaintiff by telephone in response to the new appeal and informed plaintiff that if the new appeal was granted, the original appeal "would be retained at PVSP and heard." Compl. at 5. The new appeal was partially granted on September 22, 2015, with the PVSP warden stating that "Sending [plaintiff's] property to PBSP did not resolve [the] entire issue as [the] issue regarding the affidavit needed to be addressed." Id. The response went on to advise plaintiff that if he was dissatisfied with this resolution, he could submit the appeal to the Director of Corrections for Third Level Review. Id. On October 7, 2015, plaintiff submitted the appeal for Third Level Review. Id. The appeal was cancelled at the Third Level on November 3, 2015. Id. Plaintiff never received a decision on his original appeal. Compl. at 5-6.

         DISCUSSION

         I. Standard of Review

         A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b) (1), ...