United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding without counsel. On December
14, 2016, the undersigned recommended that this action be
dismissed based on plaintiff's failure to timely file an
amended complaint. In response, plaintiff filed a motion for
extension of time to file the pleading. On December 23, 2016,
plaintiff's request was partially granted; plaintiff was
granted sixty days to file an amended complaint. On February
27, 2017, plaintiff filed a second amended complaint.
Therefore, the December 14, 2016 findings and recommendations
are vacated, and the court now screens plaintiff's
amended pleading, plaintiff alleges that Mrs. Davis did not
allow plaintiff to grieve his First Amendment claim through
the third level of appeal. In addition to money damages,
plaintiff seeks a declaratory judgment stating that Davis
violated plaintiff's First Amendment right to grieve the
government by not allowing him photocopies to substantiate
his claim to the proper government department. Plaintiff
alleges that S.L. Chapman, who was aware of Davis'
denial, did not allow plaintiff to make “copies of
documents needed to show what was done by the
complaint.” (ECF No. 35 at 2.) In addition to money
damages, plaintiff seeks a declaratory judgment stating that
Chapman denied plaintiff's grievances.
plaintiff failed to identify the individuals named as
defendants in the caption of the complaint. Fed.R.Civ.P.
10(a). Although it appears that plaintiff now names Davis and
Chapman as defendants, plaintiff's pleading must make
clear who he is naming as a defendant in the pleading.
despite multiple opportunities to amend, plaintiff has again
failed to state a cognizable access to the courts claim in
violation of the First Amendment. The amended pleading does
not identify any cognizable injury plaintiff suffered as a
result of defendants alleged refusal to copy documents.
Because actual injury is a jurisdictional requirement that
may not be waived, an actual injury must be alleged in order
to state a claim for relief. Nevada Dept. of Corr. v.
Greene, 648 F.3d 1014, 1018 (9th Cir. 2011); see,
e.g., Jenkins v. McMickens, 618 F.Supp. 1472,
1474-75 (S.D. N.Y. 1985) (complaint alleging certain
documents pertaining to pending trial were confiscated and
not returned is too conclusory to support a claim of denial
of access to court).
plaintiff fails to demonstrate the alleged failure to provide
photocopies interfered with his access to the courts. Rather,
plaintiff claims he needed the photocopies to
“substantiate his claim to the proper government
department.” (ECF No. 35 at 2.) In addition, in his
appeal HDSP-B-14-01853, plaintiff stated he was exercising
his right to file a formal citizen complaint, requested
documents necessary to advance his civil litigation in his
complaint to the State Bar of California, and the documents
were needed to be sent to the State Bar of California, Audit
and Review Unit. (ECF No. 35 at 20, 24.) Plaintiff requested
to have 765 pages photocopied for the State Bar.
(Id. at 20, 21, 23, 24.) The exhibits provided by
plaintiff demonstrate that his underlying complaint to the
State Bar was denied, but that plaintiff could request the
State Bar's Audit & Review Unit to review the
complaint. (Id. at 26.) Any inability to file a
citizen's complaint or to file documents with the State
Bar does not fall within the purview of claims covered by
plaintiff's constitutional right of access to the courts.
The right of access protects only the right to file direct
criminal appeals, habeas petitions, and civil rights actions.
See Lewis, 518 U.S. at 354-55. Having failed to meet
these requirements, any right of access claim under the First
Amendment must be dismissed.
was first advised of these requirements in the court's
initial screening order issued on April 29, 2015. (ECF No. 23
at 5.) Plaintiff was reminded of the actual injury
requirement in the November 7, 2016 screening order. (ECF No.
31 at 3.) Plaintiff's second amended complaint makes no
reference to an actual injury to court access to file any
document in a court of law. The exhibits provided with
plaintiff's amended pleading confirm that plaintiff
sought the photocopies for filing with the State Bar or in
connection with his citizen's complaint, which does not
constitute an actual injury under Lewis. Thus, it
would be futile to again grant plaintiff leave to amend his
access to the courts claim.
plaintiff's allegation that defendant Chapman denied
plaintiff's administrative appeal or kept him from filing
a third level appeal fail to state a cognizable due process
claim. Plaintiff cannot state a due process claim based on
defendants' role in the inmate appeal process.
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.”). Therefore, plaintiff's
claims that Chapman wrongfully denied plaintiffs
administrative appeals fail to state a due process claim and
must be dismissed.
HEREBY ORDERED that the December 14, 2016 findings and
recommendations (ECF No. 32) are vacated; and
RECOMMENDED that this action be dismissed.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, plaintiff may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Plaintiff is
advised that failure to file objections ...