United States District Court, E.D. California
J.L. HOWZE, Plaintiff,
RICK MALMENDIER, et al., Defendants.
KENDALL J. NEWMAN UNITED STATE S MAGISTRATE JUDGE.
is a state prisoner, proceeding pro se. Plaintiff seeks
relief pursuant to 42 U.S.C. § 1983, and has requested
leave to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915. This proceeding was referred to this court by
Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
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.
is required to pay the statutory filing fee of $350.00 for
this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By
this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 28 U.S.C.
§ 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).
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. 28 U.S.C. §
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 pleaded, 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.
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,
Hosp. 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).
names as defendants R. Malmendier, Appeals Coordinator, and
A. Brager, AGPA. Plaintiff asserts that defendants violated
plaintiff's due process rights by refusing to process and
cancelling various administrative appeals. As a result of
their actions, plaintiff avers that his case no. 2:14-cv-2069
GEB CKD was dismissed for failure to exhaust administrative
remedies. In addition, plaintiff raises allegations of fraud,
claiming that defendants' failure to assign a log number
to his appeal was a breach of their legal duty and therefore
constitutes fraud. Plaintiff seeks money damages and
injunctive relief in the form of requiring defendants to
process all ADA-related administrative appeals.
Process Clause protects plaintiff against the deprivation of
liberty without the procedural protections to which he is
entitled under the law. Wilkinson v. Austin, 545
U.S. 209, 221 (2005). However, plaintiff has no stand-alone
due process rights related to the administrative grievance
process. Ramirez v. Galaza, 334 F.3d 850, 860 (9th
Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th
Cir. 1988). A prison official's denial of a grievance
does not itself violate the constitution. Evans v.
Skolnik, 637 Fed.Appx. 285, 288 (9th Cir. 2015),
cert. dism'd, 136 S.Ct. 2390 (2016). Thus, the
denial, rejection, or cancellation of a grievance does not
constitute a due process violation. See, e.g., Wright v.
Shannon, 2010 WL 445203, at *5 (E.D. Cal. Feb. 2, 2010)
(plaintiff's allegations that prison officials denied or
ignored his inmate appeals failed to state a cognizable claim
under the First Amendment); Towner v. Knowles, 2009
WL 4281999 at *2 (E.D. Cal. Nov. 20, 2009) (plaintiff's
allegations that prison officials screened out his inmate
appeals without any basis failed to indicate a deprivation of
federal rights); Williams v. Cate, 2009 WL 3789597,
at *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no
protected liberty interest in the vindication of his
administrative claims.”). Thus, plaintiff's claims
that defendants violated his due process rights in failing to
properly process his administrative appeals and allegedly
committed fraud during such process are dismissed without
leave to amend.
within his due process claims, plaintiff alleges that his
civil rights complaint in Howze v. CDCR, No.
2:14-cv-2069 GEB CKD, was dismissed based on plaintiff's
failure to exhaust his administrative remedies. It appears
that plaintiff may be able to state a cognizable access to
the courts claim.
have a First Amendment right to access to the courts. See
Lewis v. Casey, 518 U.S. 343, 346 (1996). Prisoners have
no freestanding right to a prison grievance process, see
Ramirez, 334 F.3d at 860, but “a prisoner's
fundamental right of access to the courts hinges on his
ability to access the prison grievance system.”
Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995),
overruled on other grounds by Shaw v. Murphy, 532
U.S. 223, 230 n.2 (2001). To state a viable claim that his
right to access the courts has been violated, a plaintiff
must have suffered an “actual injury” by being
shut out of court. Christopher v. Harbury, 536 U.S.
403, 415 (2002). Therefore a correctional officer's
active interference with an inmate's appeal may be the
basis of a claim under the First Amendment if that action
disabled the inmate from pursuing litigation in court.
See Navarro v. Herndon, 2012 WL 6097112 at *2 (E.D.
Cal. Dec. 7, 2012). The right of access to the courts applies
to nonfrivolous direct criminal appeals, habeas corpus
proceedings, and Section 1983 actions. Lewis, 518
U.S. at 353 n.3, 354-55. Therefore, plaintiff is granted
leave to file an amended complaint to plead a First Amendment
access to the courts claim.
plaintiff chooses to amend the complaint, plaintiff must
demonstrate how the conditions complained of have resulted in
a deprivation of plaintiff's constitutional rights.
See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).
Also, the complaint must allege in specific terms how each
named defendant is involved. There can be no liability under
42 U.S.C. § 1983 unless there is some affirmative link
or connection between a defendant's actions and the
claimed deprivation. Rizzo v. Goode, 423 U.S. 362
(1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.
1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.
1978). Furthermore, vague and conclusory allegations of
official participation in civil rights violations are not
sufficient. Ivey v. Bd. of Regents, 673 F.2d 266,
268 (9th Cir. 1982).
addition, plaintiff is informed that the court cannot refer
to a prior pleading in order to make plaintiff's amended
complaint complete. Local Rule 220 requires that an amended
complaint be complete in itself without reference to any
prior pleading. This requirement is because, as a general
rule, an amended complaint supersedes the original complaint.
See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).
Once plaintiff files an amended complaint, the original
pleading no longer serves any function in the case.
Therefore, in an amended complaint, as in an original
complaint, each claim and the involvement of each defendant
must be sufficiently alleged.
is not required to provide exhibits to his amended complaint.
Plaintiff previously provided exhibits with his original
complaint. Any party may refer to such exhibits, or plaintiff
may ask the Court ...