United States District Court, N.D. California
ORDER OF PARTIAL SERVICE; DISMISSING CLAIM WITH LEAVE
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
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.
complaint alleges the following:
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. 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.
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.
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
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
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.
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.
Standard of Review
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),