Quezada v. Fisher et al

Filing 46

ORDER ADOPTING 43 Findings and Recommendations Regarding Dismissal of Certain Claims, signed by District Judge Lawrence J. O'Neill on 1/7/2015. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALVARO QUEZADA,

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Plaintiff,

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v.
R. FISHER, et al.,
Defendants.

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1:09-cv-01856-LJO-BAM (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DISMISSAL OF CERTAIN CLAIMS
(ECF No. 1, 43)

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Plaintiff Alvaro Quezada (“Plaintiff”) is a state prisoner proceeding in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on October 22,

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2009. On July 30, 2012, the Court dismissed this action as duplicative of 1:08-cv-01404-FRZ.

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On May, 29, 2014, the Ninth Circuit Court of Appeals found that the action was not duplicative

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and reversed the Court’s dismissal order and remanded the action for further proceedings. On

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June 26, 2014, the Ninth Circuit issued its mandate.

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On November 25, 2014, the Court screened Plaintiff’s complaint and found that it stated

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a cognizable claim for violation of the Fourteenth Amendment based on allegations of improper

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classification and race-based lockdowns, but failed to state any other cognizable claims. The

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Court directed Plaintiff to either file a first amended complaint or notify the Court that he did not

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wish to file an amended complaint and was willing to proceed only on the cognizable Fourteenth

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Amendment claim against Defendants Fisher, Jose, Doria, Scott and Ortiz. (ECF No. 40.) On

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December 15, 2014, Plaintiff filed a notice indicating that he wished to proceed only on the
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cognizable claim. (ECF No. 41.) Based on the notice, the Magistrate Judge issued Findings and

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Recommendations that this action proceed on Plaintiff’s complaint, filed October 22, 2009, for

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violation of the Fourteenth Amendment based on his allegations of improper classification and

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race based lockdowns against Defendants Fisher, Jose, Doria, Scott and Ortiz. The Magistrate

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Judge also recommended dismissal of Plaintiff’s claim arising from his grievances, his

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conspiracy claim, his retaliation claim and his request for declaratory relief. The Findings and

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Recommendations were served on Plaintiff and contained notice that any objections were to be

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filed within fourteen (14) days after service. (ECF No. 43.) On December 31, 2014, Plaintiff

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filed objections to the Findings and Recommendations. (ECF No. 45.)

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Plaintiff indicates that he is making his objections for the purpose of preserving his legal

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rights on the issue of exhaustion. Plaintiff asserts that he does not waive any legal claim asserted

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in his “Exhausted 602 Appeal Grievance KVSP-06-00822 & IAB Case No. 0703875.” (ECF

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No. 45, p. 2.) Plaintiff also does not agree with any inference that his exhausted grievance

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should be dismissed relating to his Fourteenth Amendment claims. He also objects that his

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exhausted grievance was not made part of the record to serve on Defendants with the summons

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and complaint. Plaintiff asserts that the absence of his exhausted appeal does not waive or void

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any of his Fourteenth Amendment legal claims. (Id.)

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Plaintiff’s objections appear to relate solely to the issue of exhaustion of administrative

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remedies and not the Magistrate Judge’s findings regarding Plaintiff’s cognizable Fourteenth

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Amendment claim. However, to the extent Plaintiff complains about the dismissal of any claim

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regarding the alleged failure of the appeals coordinators to respond to or process his grievances,

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the Magistrate Judge correctly determined that Plaintiff cannot state a constitutional claim related

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to the acceptance or processing of his appeals. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.

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2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (no entitlement to grievance

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procedure). Plaintiff’s objections therefore do not provide any basis to reject the Magistrate

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Judge’s findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted
a de novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s
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objections, the Court finds the Findings and Recommendations to be supported by the record and

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by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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The Findings and Recommendations, issued on December 19, 2014, are adopted

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This action shall proceed on Plaintiff’s complaint, filed on October 22, 2009, for

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in full;

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violation of the Fourteenth Amendment based on his allegations of improper classification and

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race based lockdowns against Defendants Fisher, Jose, Doria, Scott and Ortiz; and

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3.

Plaintiff’s claim arising from his grievances, his conspiracy claim, his retaliation

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claim and his request for declaratory relief are DISMISSED from this action.

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IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill

January 7, 2015

UNITED STATES DISTRICT JUDGE

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