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Gay v. Shaffer

United States District Court, N.D. California

June 28, 2017

OMAR SHARRIEFF GAY, E22575, Plaintiffs,
v.
JENNIFER SHAFFER, et al., Defendants.

          ORDER OF SERVICE

          CHARLES R. BREYER United States District Judge.

         Plaintiff, a prisoner at California State Prison, Solano (CSP - SOL), has filed a pro se complaint under 42 U.S.C. § 1983 alleging that in September 2015, while he was incarcerated at the Correctional Training Facility (CTF), Board of Parole Hearings (BPH) psychologists Amy Parsons and Gregory S. Goldstein interviewed him for a psychological diagnostic evaluation in preparation for a subsequent parole suitability hearing and, on account of his being African-American and Muslim, and having previously refused psychological diagnostic evaluations, assessed him as high risk for future violence. Plaintiff claims this amounted to unlawful discrimination and retaliation.

         Plaintiff also alleges that BPH Chief Psychologist Cliff Kusaj and Secretary Jennifer Shaffer ignored and/or mishandled his administrative appeals and complaints regarding Parsons and Goldstein's psychological assessment.

         DISCUSSION

         A. Standard of Review

         Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted, ” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed, however. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

         B. Legal Claims

         Allegations of intentional unlawful discrimination based on race or other suspect classification state a claim for denial of equal protection under § 1983. See Monteiro v. Tempe Union High School Dist., 158 F.3d 1022, 1026 (9th Cir. 1998). Liberally construed, plaintiff's allegations that psychologists Parsons and Goldstein assessed him as high risk for future violence on account of his being African-American and Muslim state an arguably cognizable § 1983 claim for denial of equal protection against these two defendants. See Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (in order to state claim for denial of equal protection, plaintiff must allege that defendant state actor acted at least in part because of plaintiff's membership in protected class). And plaintiff's allegations also state an arguably cognizable § 1983 claim for retaliation against these two defendants because the right to equal protection includes the right not to be retaliated against because of one's protected status. See Maynard v. City of San Jose, 37 F.3d 1396, 1404-05 (9th Cir. 1994) (in order to prove retaliation in violation of equal protection, plaintiff must show that defendants performed acts which operated to deprive plaintiff of his constitutional rights at least in part because of plaintiff's protected status).

         But plaintiff's allegations that BPH Chief Psychologist Cliff Kusaj and Secretary Jennifer Shaffer ignored and/or mishandled his administrative appeals and complaints regarding Parsons and Goldstein's psychological assessment are dismissed for failure to state a claim under § 1983 because it is well-established that there is no constitutional right to a prison administrative appeal or grievance system, see Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988), and that a state's creation of a prison administrative appeal or grievance system does not implicate a liberty interest protected by the Due Process Clause, see Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (same). And although there certainly is a right to petition the government for redress of grievances (a First Amendment right), there is no right to a response or any particular action. See Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (“prisoner's right to petition the government for redress . . . is not compromised by the prison's refusal to entertain his grievance”).

         This action will proceed as to plaintiff's § 1983 equal protection and retaliation claims that psychologists Parsons and Goldstein assessed him as high risk for future violence on account of his being African-American and Muslim. All other purported claims and defendants are dismissed under § 1915A(b).

         CONCLUSION

         For the foregoing reasons and for good cause shown, 1. The clerk shall issue summons and the United States Marshal shall serve, without prepayment of fees, copies of the complaint in this matter (ECF No.1), all attachments thereto, and copies of this order on the following defendants at Board of Parole Hearings, P.O. Box 4036, Sacramento, CA 95812-4036: Senior Psychologist Amy Parsons and Psychologist Gregory S. ...


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