Lopez v. Yates, et al.

Filing 11

FINDINGS and RECOMMENDATION Recommending Dismissal of Plaintiff's Action with Prejudice for Failure to State a Claim 10 , signed by Magistrate Judge Gerald B. Cohn on 8/31/11. Referred to Judge Wanger. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EMILIANO LOPEZ,

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CASE NO.
Plaintiff,

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v.

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1:11-cv-00107-OWW-GBC (PC)

FINDINGS AND RECOMMENDATION
RE COMME NDING D I S M I S S A L O F
PLAINTIFF’S ACTION WITH PREJUDICE
FOR FAILURE TO STATE A CLAIM

JAMES A. YATES, et al.,
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(ECF No. 10)
Defendants.

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/ OBJECTIONS DUE WITHIN THIRTY DAYS

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FINDINGS AND RECOMMENDATION

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I.

PROCEDURAL HISTORY

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Plaintiff Emiliano Lopez (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this

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action on January 21, 2011. (ECF No. 1.) The Court dismissed Plaintiff’s original

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complaint, with leave to amend, for failure to state a claim. (ECF No. 9.) Plaintiff filed a

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First Amended Complaint on August 25, 2011. (ECF No. 10.) No other parties have
appeared.
Plaintiff’s First Amended Complaint is now before this Court for screening. For the

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reasons set forth below, the Court finds that it fails to state a claim upon which relief may

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be granted.

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II.

SCREENING REQUIREMENTS

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual

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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

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III.

SUMMARY OF COMPLAINT

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Plaintiff alleges violations of his First Amendment right to access to the courts.
Plaintiff names the following individuals as Defendants: James A. Yates, Matthew Cate,

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Robert Trimble, Larry Mackin, L. Wilson, and P. Tuman.
Plaintiff alleges as follows: Plaintiff was scheduled to attend, via telephone, a
hearing regarding his daughter on October 26, 2009. On August 18, 2009, Plaintiff sent

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a GA-22 form to the prison litigation office asking how he should go about getting access

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to a telephone so that he could attend the hearing telephonically. Plaintiff received a

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response from Defendant Wilson on August 20, 2009. Wilson stated that it was Plaintiff’s

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responsibility to set up the court call and included instructions on how to set the call up

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using Court Call LLC. The memo was signed by Defendant Mackin. On September 7,

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2009, Plaintiff wrote to Court Call following the instructions. Court Call responded on

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September 24, 2009 informing Plaintiff that the department where Plaintiff’s hearing was

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being held did not utilize Court Call’s services. On September 27, 2009, Plaintiff sent

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another request form to the litigation office relaying the information from Court Call. The

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litigation office did not respond, so Plaintiff sent a second request, which also received no

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response.

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Plaintiff then spoke with his correctional counselor, Defendant Tuman, informing her

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of his upcoming hearing and asking if she could make arrangements for him to use a
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phone. She told him to talk to her about it later.

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On October 12, 2009, Plaintiff gave a request form to the program office porter to

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slip under Defendant Tuman’s door. Plaintiff again requested access to a phone and

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enclosed the letter from Court Call. These documents were lost in Tuman’s office. On

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November 10, 2009, Tuman stated that she never received the documents or request.

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On November 16, 2009, Plaintiff submitted a 602 grievance. Defendant Mackin
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denied the grievance at the informal level stating that he called Court Call and was told that

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Plaintiff never made contact with them.

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interviewed by Mackin and Wilson at the first level. Plaintiff’s appeal was denied at the

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Plaintiff appealed his grievance and was

first, second, and third levels.

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Plaintiff seeks compensation and punitive damages.

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IV.

ANALYSIS
The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured
by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.

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1997) (internal quotations omitted).
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A.

Access to Courts Claim

Plaintiff appears to be alleging that Defendants Wilson and Tuman interfered with
his access to the courts.
Inmates have a fundamental constitutional right of access to the courts. Lewis v.
Casey, 518 U.S. 343, 346 (1996). However, the right is limited to direct criminal appeals,

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habeas petitions, and civil rights actions. Id. at 354. As a matter of standing, for an access
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to courts claim, a plaintiff must show that he suffered an “actual injury” with respect to

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contemplated litigation; the plaintiff must demonstrate that the conduct of the defendants

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prevented him from bringing to court a nonfrivolous claim that he wished to present. Lewis,

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518 U.S. at 351-53. That nonfrivolous claim must be a direct or collateral attack on the

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inmate’s sentence, or a challenge to the conditions of his confinement. Id. at 355.

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“Impairment of any other litigating capacity is simply one of the incidental (and perfectly

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constitutional) consequences of conviction and incarceration.” Id. (emphasis in original).

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Plaintiff alleges that due to Defendants’ actions or inactions, he was prevented from

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appearing telephonically at a hearing in family court. This is not a challenge to Plaintiff’s

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sentence or to his conditions of confinement. Accordingly, Plaintiff has failed to state an

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access to the courts claim.

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Plaintiff was previously notified of the relevant legal standards and the deficiencies

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in his original complaint. His Amended Complaint contains additional facts, but no

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allegations that are materially different than those contained in his previous complaint. The

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Court was able to determine that Plaintiff’s access to the courts claim failed as stated

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above. Because Plaintiff’s Amended Complaint again fails to state a claim against any

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named Defendant, the Court will dismiss this claim without further leave to amend

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B.

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Plaintiff added a claim to his First Amended Complaint. He appears to be alleging

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Inmate Appeal Process

that Defendants Yates, Mackin, and Wilson mishandled his grievance forms.

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Defendants’ actions in responding to Plaintiff’s appeals alone cannot give rise to any

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claims for relief under Section 1983 for violation of due process. “[A prison] grievance

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procedure is a procedural right only, it does not confer any substantive right upon the

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inmates.”

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DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850,

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Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v.

860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to

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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,

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855 F.2d 639, 640 (9th Cir. 1988). “Hence, it does not give rise to a protected liberty

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interest requiring the procedural protections envisioned by the Fourteenth Amendment.”

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Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

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Actions in reviewing a prisoner’s administrative appeal cannot serve as the basis for liability
under a Section 1983 action. Buckley, 997 F.2d at 495.

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Because Plaintiff has neither a liberty interest nor a substantive right in inmate

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appeals, Plaintiff fails to state a claim in this regard. Because amendment of this claim

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would be futile, the Court recommends that this claim also be dismissed without leave to

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amend.

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V.

CONCLUSION AND RECOMMENDATION
Accordingly, the Court finds that Plaintiff’s First Amended Complaint fails to state

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any claims upon which relief may be granted.

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RECOMMENDS that this action be DISMISSED WITH PREJUDICE for failure to state a

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claim.

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Therefore, the Court HEREBY

These Findings and Recommendation will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within

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thirty (30) days after being served with these Findings and Recommendation, the parties

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may file written objections with the Court. The document should be captioned “Objections

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to Magistrate Judge’s Findings and Recommendation.” The parties are advised that failure

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to file objections within the specified time may waive the right to appeal the District Court’s

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order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.

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Dated:
1j0bbc

August 31, 2011
UNITED STATES MAGISTRATE JUDGE