United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH
PREJUDICE (DOC. 17) ORDER DIRECTING CLERK'S OFFICE TO
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
alleges that Health Care Appeals Office staff, S. Serda, and
Deputy Director J. Lewis violated his rights in their
handling and processing of a health care appeal in which he
sought a second x-ray of his ribs and exam by an outside
physician. These allegations are not cognizable under 42
U.S.C. § 1983 as a violation of Plaintiff's federal
rights. Thus, the action is DISMISSED with prejudice.
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,
malicious, 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. § 1915A(b)(1), (2);
28 U.S.C. § 1915(e)(2)(B)(i)-(iii). If an action is
dismissed on one of these three basis, a strike is imposed
per 28 U.S.C. § 1915(g). An inmate who has had three or
more prior actions or appeals dismissed as frivolous,
malicious, or for failure to state a claim upon which relief
may be granted, and has not alleged imminent danger of
serious physical injury does not qualify to proceed in
forma pauperis. See 28 U.S.C. § 1915(g);
Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir.
Summary of Allegations
alleges that on August 31, 2016, he went to get an x-ray of
his right ribcage. Afterward, the physician did not show him
the x-ray and did not respond when Plaintiff asked if any of
his ribs were broken. On September 11, 2016, Plaintiff submitted
a health care appeal indicating that he believed he had two
broken ribs and loss of memory. Plaintiff was interviewed
about his health care appeal by non-defendant Dr.
Beregovskaya who told Plaintiff that he did not have any
broken ribs or punctured lung. Plaintiff stated that he knew
his rib-cage was broken because it hurt real bad and he was
in a lot of pain and unable to sleep at night. The first
level review issued on October 18, 2016 and was partially
granted on another issue. On October 24, 2016, Plaintiff
submitted it for second level review which was rejected by S.
Serda on October 26, 2016 who indicated that Plaintiff could
request a second x-ray on another health care appeal.
Plaintiff did, but S. Serda denied it at the first level
indicating that it was duplicative of Plaintiff's first
health care appeal, and advising that Plaintiff could submit
his first health care appeal for second level review -- which
she had already rejected. Plaintiff thereafter attempted to
pursue his first health care appeal to the third level, but
it was rejected on the basis that Plaintiff attempted to
bypass the second level, but Plaintiff had not -- S. Serda
rejected his first health care appeal at the second level on
October 26, 2016. Plaintiff wrote to the “Inmate
Correspondence Appeals Branch” who responded that
Plaintiff could return his first health care appeal to the
second level and it “would be accepted for continuous
processing, ” but Plaintiff was transferred to another
facility before he could do so.
Plaintiff's frustration with this situation is apparent
and understandable, as discussed below, it does not suffice
to state a cognizable claim for violation of Plaintiff's
civil rights under 42 U.S.C. § 1983.
prison] grievance procedure is a procedural right only, it
does not confer any substantive right upon the
inmates.” Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993) (citing Azeez v. DeRobertis, 568
F.Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v.
Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty
interest in processing of appeals because no entitlement to a
specific grievance procedure); Massey v. Helman, 259
F.3d 641, 647 (7th Cir. 2001) (existence of grievance
procedure confers no liberty interest on prisoner); Mann
v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).
“Hence, it does not give rise to a protected liberty
interest requiring the procedural protections envisioned by
the Fourteenth Amendment.” Azeez v.
DeRobertis, 568 F.Supp. at 10; Spencer v.
Moore, 638 F.Supp. 315, 316 (E.D. Mo. 1986).
in reviewing prisoner's administrative appeal cannot
serve as the basis for liability under a ' 1983 action.
Buckley, 997 F.2d at 495. The argument that anyone
who knows about a violation of the Constitution, and fails to
cure it, has violated the Constitution himself is not
correct. “Only persons who cause or participate in the
violations are responsible. Ruling against a prisoner on an
administrative complaint does not cause or contribute to the
violation. A guard who stands and watches while another guard
beats a prisoner violates the Constitution; a guard who
rejects an administrative complaint about a completed act of
misconduct does not.” George v. Smith, 507
F.3d 605, 609-10 (7th Cir. 2007) citing Greeno v.
Daley, 414 F.3d 645, 656-57 (7th Cir.2005); Reed v.
McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance
v. Peters, 97 F.3d 987, 992-93 (7th Cir.1996).
he has neither a liberty interest nor a substantive right in
inmate appeals, he is unable to state a constitutional
violation against S. Serda and J. Lewis for their processing
or handling of his appeals. Further, “[o]nce a
[non-medical] prison grievance examiner becomes aware of
potential mistreatment, the Eighth Amendment does not require
him or her to do more than ‘review [the prisoner's]
complaints and verif[y] with the medical officials that [the
prisoner] was receiving treatment.' ”
Greeno, 414 F.3d at 656 citing Spruill v.
Gillis, 372 F.3d 218, 236 (3rd Cir. 2004) (non-physician
defendants cannot “be considered deliberately
indifferent simply because they failed to respond directly to
the medical complaints of a prisoner who was already being
treated by the prison doctor” and if “a prisoner
is under the care of medical experts . . . a non-medical
prison official will generally be justified in believing that
the prisoner is in capable hands.”) This Court concurs
with the analysis in Greeno and Spruill.
Thus, S. Serda and J. Lewis, who are non-medical prison
personnel, cannot be held liable for their involvement in
processing and/or ruling on inmate appeals for medical issues
where, as here, the inmate is under the care of a physician
for the issues raised.
Complaint does not state a cognizable claim against either
Defendant for their involvement in the processing and
procedural rejection of Plaintiff's health care appeals.
Given that this is not a basis for a cognizable claim,
Plaintiff need not be granted leave to amend as the defects
in his pleading are not capable of being cured through
amendment. Akhtar v. Mesa, 698 F.3d 1202, 1212-13
(9th Cir. 2012).
the Court ORDERS that the Complaint is DISMISSED with
prejudice and the Clerk of the Court ...