United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
is a former county jail inmate, proceeding without counsel.
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and
is proceeding in forma pauperis. This proceeding was referred
to this court pursuant to 28 U.S.C. § 636(b)(1) and
Local Rule 302. Plaintiff's amended complaint is now
before the court.
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).
alleges that defendants Deputy District Attorney Stacy
Derman, her supervisor Robert Himelblau, and Public Defender
Christina Martinez violated plaintiff's Constitutional
rights by, inter alia, failing to timely hold a
preliminary hearing, requiring plaintiff to undergo
competency proceedings, misadvising plaintiff about jail time
and alternative programs, resulting in his allegedly false
imprisonment. Plaintiff claims that Sgt. Martinez planted
evidence on plaintiff resulting in plaintiff receiving extra
jail time, and that it was done in retaliation for plaintiff
writing excessive jail grievances. Plaintiff claims Lt.
Leatuge withheld plaintiff's grievances and was racially
biased in plaintiff's disciplinary review. Plaintiff
claims he suffered physical and mental abuse under racial
slurs about plaintiff's religion. Sgt. Christen called
plaintiff a “jay cat” “(Krazy).” (ECF
No. 7 at 7, 8.) Plaintiff seeks money damages.
in the court's prior screening order, plaintiff was
informed that he may properly assert multiple claims only
against a single defendant, or may join multiple defendants
in one action where the claimed violations arose out of the
same transaction, occurrence, or series of transactions and
occurrences, and any question of law or fact common to all
defendants will arise in the action. Fed.R.Civ.P. 20(a)(2).
In his amended complaint, plaintiff has again named multiple
defendants based on unrelated incidents. Unrelated claims
against different defendants must be pursued in separate
lawsuits. See George v. Smith, 507 F.3d 605, 607
(7th Cir. 2007).
as plaintiff was also previously informed, his allegations
against the district attorney, her supervisor, and
plaintiff's public defender are unavailing. (ECF No. 6 at
5.) Plaintiff's public defender does not act under color
of state law within the meaning of 42 U.S.C. § 1983;
thus plaintiff cannot state a cognizable federal civil rights
claim against the public defender. Polk County v.
Dodson, 454 U.S. 312, 320-25 (1981). The district
attorney and her supervisor are entitled to absolute
prosecutorial immunity. See Van de Kamp v.
Goldstein, 555 U.S. 335, 341 (2009) (state prosecutors
are entitled to absolute prosecutorial immunity for acts
taken in their official capacity); Imbler v.
Pachtman, 424 U.S. 409, 427, 430-31 (1976) (holding
prosecutors absolutely immune from civil suits for damages
under § 1983 for initiating criminal prosecutions and
presenting cases); Olsen v. Idaho State Bd. of
Medicine, 363 F.3d 916, 922 (9th Cir. 2004)
(“Absolute immunity is generally accorded to judges and
prosecutors functioning in their official
capacities.”). Because plaintiff cannot amend to state
cognizable claims against such individuals, plaintiff is not
granted leave to renew such claims in any second amended
to the extent plaintiff wishes to challenge his criminal
conviction, he must do so through a petition for writ of
habeas corpus. As a general rule, a claim that challenges the
fact or duration of a prisoner's confinement should be
addressed by filing a habeas corpus petition, while a claim
that challenges the conditions of confinement should be
addressed by filing a civil rights action. See Wolff v.
McDonnell, 418 U.S. 539, 554 (1974); Preiser v.
Rodriguez, 411 U.S. 475, 499-500 (1973); Ramirez v.
Galaza, 334 F.3d 850, 858-859 (9th Cir. 2003), cert.
denied, 541 U.S. 1063 (2004).
plaintiff's challenges concerning the handling of his
jail grievances are not cognizable. The Due 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.”). Plaintiff should not renew
his claims concerning withheld grievances or other alleged
mishandling of his grievances in any amended pleading.
plaintiff's claims of name-calling do not rise to the
level of a civil rights violation. Allegations of harassment,
embarrassment, and defamation are not cognizable under
section 1983. Rutledge v. Arizona Bd. of Regents,
660 F.2d 1345, 1353 (9th Cir. 1981), aff'd sub nom.
Kush v. Rutledge, 460 U.S. 719 (1983); see also
Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1982)
(allegations of harassment with regards to medical problems
not cognizable); Ellingburg v. Lucas, 518 F.2d 1196,
1197 (8th Cir. 1975) (Arkansas state prisoner does not have
cause of action under § 1983 for being called obscene
name by prison employee); Batton v. North Carolina,
501 F.Supp. 1173, 1180 (E.D. N.C. 1980) (mere verbal abuse by
prison officials does not state claim under § 1983). Nor
are allegations of mere threats cognizable. See Gaut v.
Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat
does not constitute ...