Cottle v. Randall et al

Filing 18

ORDER DISMISSING CASE (Strike), With Prejudice, For Failure To State A Claim Upon Which Relief May Be Granted Under § 1983 (Doc. 17 ), ORDER That This Dismissal Is Subject To The "Three Strikes" Provision Of 28 U.S.C. § 1915(g), ORDER Directing Clerk To Close Case, signed by Magistrate Judge Gary S. Austin on 1/27/2014. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE ELLIOTT COTTLE,

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Plaintiff,

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1:12-cv-00961-GSA-PC
ORDER DISMISSING CASE, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED UNDER § 1983
(Doc. 17.)

vs.
D. RANDALL, et al.,

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Defendants.

ORDER THAT THIS DISMISSAL IS
SUBJECT TO THE “THREE STRIKES”
PROVISION OF 28 U.S.C. § 1915(g)

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ORDER DIRECTING CLERK TO CLOSE
CASE

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I.

BACKGROUND

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Lawrence Elliott Cottle (APlaintiff@) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on June 14, 2012. (Doc. 1.)

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On June 29, 2012, Plaintiff consented to Magistrate Judge jurisdiction in this action

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pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (Doc. 6.)

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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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The court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an order

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on February 20, 2013, dismissing the Complaint for failure to state a claim, with leave to

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amend. (Doc. 9.) On May 15, 2013, Plaintiff filed the First Amended Complaint, which is

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now before the court for screening. (Doc. 17.)

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II.

SCREENING REQUIREMENT

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a).

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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa short and plain statement of the claim showing

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that the pleader is entitled to relief . . . .@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but A[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, 556 U.S. 662, 678, 129 S.Ct.

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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

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unwarranted inferences.@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere

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possibility of misconduct falls short of meeting this plausibility standard. Id. at 678-79; Moss

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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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III.

SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility

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in Corcoran, California.

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occurred at the California Correctional Institution in Tehachapi, California, when Plaintiff was

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incarcerated there. Plaintiff names as defendants Lieutenant D. Randall, Sergeant (Sgt.) G.

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Doser, T. W. Steadman (Associate Warden), K. Holland (Chief Deputy Warden), Captain R.

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Davis (Appeals Examiner), and D. Foston (Chief, Inmate Appeals Branch). Plaintiff’s factual

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allegations follow.

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The events at issue in the First Amended Complaint allegedly

On June 17, 2010, during recreational yard recall, a group disturbance ensued involving

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several inmates fighting.

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assigned by officers as a staging area for Plaintiff’s building during yard recall. When Plaintiff

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heard “Get down,” he immediately got down in the concrete area directly in front of him, to

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avoid being mistaken as a combatant or being shot. (First Amd Cmp, Doc. 17 at 4-5.)

When the fighting erupted, Plaintiff was stationery in the area

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Following the disturbance, all African-American inmates who were “down” in selected

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areas of the recreational yard were placed in restraints and escorted off the yard to be strip-

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searched and medically evaluated, to determine whether they were involved in the disturbance.

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Plaintiff was medically evaluated and cleared, with no injuries, redness, or swelling anywhere

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on his body.

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All African-American inmates who were escorted off the yard were subsequently

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placed in administrative segregation (Ad-Seg), pending investigation. Plaintiff was unjustly

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placed in Ad-Seg from June 17, 2010 until November 30, 2010.

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On July 8, 2010, Plaintiff was issued a Rules Violation Report for participation in a riot,

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with Sgt. G. Doser named as the employee who reported that Plaintiff was observed striking

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other inmates in the head and upper torso, based on a review of a yard video recording of the

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riot. On July 9, 2010, Plaintiff was allowed to personally review the video. Despite Sgt.

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Doser’s statement, Plaintiff is not in the video.

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When Officer J. Duran (not a named defendant) introduced himself as an Investigative

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Employee, Plaintiff requested that the video recording and Sgt. Doser be present at the
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disciplinary hearing. On July 13, 2010, Officer Duran questioned Sgt. Doser to identify who

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Plaintiff was observed fighting with during the disturbance, and Sgt. Doser responded, “I would

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have to review the tape.” (First Amd Cmp at 6:13.) Sgt. Doser never returned with an answer.

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On July 30, 2010, a disciplinary hearing was conducted by Lt. D. Randall. The core

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evidence relied on was the yard recording, allegedly implicating Plaintiff in the disturbance,

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and the alleged observation by Sgt. Doser. In light of this fact, Plaintiff requested that Sgt.

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Doser be present at the disciplinary hearing, along with the yard video recording. Sgt. Doser

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was present. However, Lt. Randall refused to allow the video for Plaintiff’s defense. When Lt.

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Randall wrote his report, finding Plaintiff guilty, he purposely left out Plaintiff’s request for the

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video to be present at the hearing. Plaintiff was found guilty of participation in a riot and was

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placed in Ad-Seg. Chief Disciplinary Officer T. W. Steadman approved this disposition, fully

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aware that Plaintiff was denied the core part of his defense.

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On August 29, 2010, Plaintiff submitted an inmate grievance regarding the alleged due

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process violations. On October 13, 2010 and October 14, 2010, defendants Steadman and

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Holland denied Plaintiff’s appeal and upheld the finding of guilt, even though they

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acknowledged Plaintiff was not in the video recording of the riot. Defendants Steadman,

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Holland, and Appeals Examiner R. Davis rubberstamped the findings, acting negligently and

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recklessly in disregard of the evidence. Defendants Steadman and Holland incompetently

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failed to follow Title 15 of the California Code of Regulations. As a result of the actions of

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defendants Steadman, Holland, Davis, and Foston, Plaintiff suffered anxiety, emotional

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distress, and retaliation.

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Defendants Foston, Steadman, Holland, Randall, Doser, and Davis acted with deliberate

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difference towards Plaintiff’s due process rights guaranteed under law, and Plaintiff’s contract

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rights under Title 15. Plaintiff suffered violation of his constitutional rights under the Fourth,

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Fifth, Eighth, and Fourteenth Amendments. Defendants’ actions did not reasonably advance

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any legitimate correctional goal.

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Plaintiff requests monetary damages, declaratory relief, and costs of suit.
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IV.

PLAINTIFF’S CLAIMS
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. ASection 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. 1997)

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law and (2) the defendant deprived him of rights secured by the

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Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

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2006). AA person >subjects= another to the deprivation of a constitutional right, within the

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meaning of section 1983, if he does an affirmative act, participates in another=s affirmative acts,

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or omits to perform an act which he is legally required to do that causes the deprivation of

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which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). AThe

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requisite causal connection can be established not only by some kind of direct, personal

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participation in the deprivation, but also by setting in motion a series of acts by others which

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the actor knows or reasonably should know would cause others to inflict the constitutional

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injury.@ Id. at 743-44.

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A.

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The Due Process Clause protects prisoners from being deprived of liberty without due

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process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of

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action for deprivation of procedural due process, a plaintiff must first establish the existence of

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a liberty interest for which the protection is sought. Liberty interests may arise from the Due

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Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68 (1983).

Procedural Due Process

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The Due Process Clause itself does not confer on inmates a liberty interest in avoiding

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Amore adverse conditions of confinement,@ or in being confined in the general prison population

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instead of administrative segregation. Id.; see May v. Baldwin, 109 F.3d 557, 565 (9th Cir.

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1997) (convicted inmate=s due process claim fails because he has no liberty interest in freedom

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from state action taken within sentence imposed and administrative segregation falls within the

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terms of confinement ordinarily contemplated by a sentence) (quotations omitted); Resnick v.

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Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (plaintiff=s placement and retention in the SHU was

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within range of confinement normally expected by inmates in relation to ordinary incidents of

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prison life and, therefore, plaintiff had no protected liberty interest in being free from

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confinement in the SHU) (quotations omitted).

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Under state law, the existence of a liberty interest created by prison regulations is

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determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-

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84, 115 S.Ct. 2293 (1995). Liberty interests created by state law are Agenerally limited to

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freedom from restraint which . . . imposes atypical and significant hardship on the inmate in

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relation to the ordinary incidents of prison life.@ Id. at 484; Myron v. Terhune, 476 F.3d 716,

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718 (9th Cir. 2007).

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Plaintiff fails to establish the existence of a protected liberty interest in remaining free

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from Ad-Seg. Therefore, Plaintiff fails to state a cognizable claim for violation of his rights to

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due process based on his detention in Ad-Seg. Moreover, even if Plaintiff could establish a

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protected liberty interest, he has not alleged facts demonstrating that he was not afforded

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sufficient due process.

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APrison disciplinary proceedings are not part of a criminal prosecution, and the full

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panoply of rights due a defendant in such proceedings does not apply.@ Wolff, 418 U.S. at 556.

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With respect to prison disciplinary proceedings, the minimum procedural requirements that

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must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the

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prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his

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defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for

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taking disciplinary action; (4) the right of the prisoner to call witnesses in his defense, when
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permitting him to do so would not be unduly hazardous to institutional safety or correctional

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goals; and (5) legal assistance to the prisoner where the prisoner is illiterate or the issues

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presented are legally complex. Id. at 563-71. As long as the five minimum Wolff requirements

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are met, due process has been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994).

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ASome evidence@ must support the decision of the hearing officer. Superintendent v. Hill, 472

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U.S. 445, 455 (1985). The standard is not particularly stringent and the relevant inquiry is

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whether Athere is any evidence in the record that could support the conclusion reached . . . .@ Id.

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at 455-56 (emphasis added).

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Here, Plaintiff alleges that on July 30, 2010, a disciplinary hearing was held. Plaintiff

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does not claim, or allege facts demonstrating, that the five procedural requirements under Wolff

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were not met or that there was no evidence presented against him. Therefore, Plaintiff fails to

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state a due process claim for his detention in Ad-Seg.

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B.

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Plaintiff alleges that defendant Lt. D. Randall, who conducted Plaintiff’s disciplinary

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hearing, refused to allow Plaintiff to use video evidence to defend himself at the hearing, and

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when Lt. D. Randall wrote his report, he purposely left out Plaintiff’s request for the video to

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be present at the hearing. Plaintiff alleges that his witness, Sgt. Doser, falsely implicated

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Plaintiff in the disturbance that was the subject of the hearing. Plaintiff also alleges that

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defendant T. W. Steadman, the Chief Disciplinary Officer, approved the finding of Plaintiff’s

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guilt, fully aware that Plaintiff had been denied the core of his defense.

Improper Disciplinary Hearing

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In Edwards v. Balisok, 520 U.S. 641, 644 (1997), the United States Supreme Court

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applied the doctrine articulated in Heck v. Humphrey, 512 U.S. 477, 487 (1994), to prison

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disciplinary hearings. In Heck, the Court held that a state prisoner’s claim for damages for

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unconstitutional conviction or imprisonment is not cognizable under 42 U.S.C. § 1983 if a

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judgment in favor of plaintiff would necessarily imply the invalidity of his conviction or

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sentence, unless the prisoner can demonstrate that the conviction or sentence has previously

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been invalidated. Heck, 512 U.S. at 487. In applying the principle to the facts of Balisok, the

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Court held that a claim challenging the procedures used in a prison disciplinary hearing, even if
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such a claim seeks money damages and no injunctive relief, is not cognizable under § 1983 if

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the nature of the inmate’s allegations are such that, if proven, would necessarily imply the

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invalidity of the result of the prison disciplinary hearing. Balisok, 520 U.S. at 646. Because

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such a challenge, if successful, would invalidate the duration of the inmate’s confinement, it is

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properly brought as a habeas corpus petition and not under § 1983. Heck, 512 U.S. at 487;

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Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Here, Plaintiff’s central allegation is that the

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charges against him were false. Such a claim necessarily implies the invalidity of Plaintiff’s

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disciplinary conviction. Plaintiff does not allege that his disciplinary conviction has been

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reversed, expunged or otherwise invalidated. This claim should therefore be dismissed.

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C.

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Fourth Amendment

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The Fourth Amendment guarantees an individual’s right to be secure in his person

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against unreasonable arrests, as well as against unreasonable searches of houses and seizures of

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papers and effects. U.S. Const. amend. IV. However, “[l]awful incarceration necessarily

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entails limitations upon many of the rights enjoyed by ordinary citizens,” Taylor v. Knapp, 871

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F.2d 803, 806 (9th Cir. 1989) (citing Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194

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(1984); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974), and

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“[a]n inmate’s fourth amendment rights are among the rights subject to curtailment,” Taylor at

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806. For example, it is well-settled that a state prisoner has no reasonable expectation of

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privacy in his cell and is not entitled to Fourth Amendment protection against unreasonable

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searches and seizures. See Hudson, 468 U.S. at 527-28; Nakao v. Rushen, 766 F.2d 410, 412

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(9th Cir.1985).

Fourth Amendment/Personal Property Claim

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Plaintiff alleges that when he was placed in Ad-Seg, “all [of his] personal property

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[was] confiscated, pending investigation.” (First Amd Cmp at 5 ¶17.) Plaintiff also states that

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he “suffered a violation of his constitutional rights” under the Fourth Amendment. (Id. at 9

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¶31.) To the extent that Plaintiff seeks to state a claim under the Fourth Amendment based on

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the confiscation of his personal property, Plaintiff’s claim fails. As discussed above, a state

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prisoner is not entitled to Fourth Amendment protection against unreasonable searches and

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seizures. Therefore, Plaintiff fails to state a Fourth Amendment claim.

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Personal Property

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Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d

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728, 730 (9th Cir. 1974). However, while an authorized, intentional deprivation of property is

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actionable under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13, 104

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S.Ct. 3194 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct.

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1148 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), A[a]n unauthorized

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intentional deprivation of property by a state employee does not constitute a violation of the

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procedural requirements of the Due Process Clause of the Fourteenth Amendment if a

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meaningful postdeprivation remedy for the loss is available,@ Hudson, 468 U.S. at 533.

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California Law provides an adequate post-deprivation remedy for any property

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deprivations. See Cal. Gov't Code '' 810-895; Barnett v. Centoni, 31 F.3d 813, 816-17 (9th

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Cir. 1994). California=s Tort Claims Act requires that a tort claim against a public entity or its

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employees be presented to the California Victim Compensation and Government Claims Board,

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formerly known as the State Board of Control, no more than six months after the cause of

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action accrues.

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Presentation of a written claim, and action on or rejection of the claim are conditions precedent

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to suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245, 90 P.3d 116,

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124, 13 Cal.Rptr.3d 534, 543 (2004); Mangold v. California Pub. Utils. Comm=n, 67 F.3d 1470,

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1477 (9th Cir. 1995). To state a tort claim against a public employee, a plaintiff must allege

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compliance with the Tort Claims Act. State v. Superior Court, 32 Cal.4th at 1245, 90 P.3d at

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124, 13 Cal.Rptr.3d at 543; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police

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Dept., 839 F.2d 621, 627 (9th Cir. 1988).

Cal. Gov=t Code '' 905.2, 910, 911.2, 945.4, 950-950.2 (West 2013).

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Plaintiff alleges that his personal property was improperly confiscated, which indicates

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that the deprivation of property was intentional and unauthorized. Thus, Plaintiff=s remedy

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would be found under California law. Plaintiff fails to show compliance with the California

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Tort Claims Act, and therefore his property claim is not cognizable under federal or state law.
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D.

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AWithin the prison context, a viable claim of First Amendment retaliation entails five

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basic elements: (1) An assertion that a state actor took some adverse action against an inmate

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(2) because of (3) that prisoner=s protected conduct, and that such action (4) chilled the inmate=s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.@ Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)

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(quotation marks omitted); accord Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) and

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Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012).

Retaliation

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Plaintiff states that the violation of his rights “result[ed] in, among other things

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retaliation” and caused him to suffer “assessive (sic) retaliation/form(s) of reprisal(s).” (First

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Amd Cmp at 8 ¶28, 9 ¶31.) These statements, without more, are not sufficient to state a claim

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for retaliation. Detailed factual allegations are not required, but A[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.@ Iqbal,

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556 U.S. at 678. Therefore, Plaintiff fails to state a claim for retaliation.
Deliberate Indifference – Eighth Amendment Claim

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E.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th

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Cir. 2006). Extreme deprivations are required to make out a conditions of confinement claim,

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and only those deprivations denying the minimal civilized measure of life=s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9, 112 S.Ct. 995 (1992) (citations and quotations omitted). AAn Eighth Amendment

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claim that a prison official has deprived inmates of humane conditions of confinement must

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meet two requirements, one objective and the other subjective.@ Allen v. Sakai, 48 F.3d 1082,

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1087 (9th Cir. 2010) cert. denied, 514 U.S. 1065 (1995). First, the alleged deprivation must be,

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in objective terms, Asufficiently serious.@ Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct.

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1970 (1994).

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excessive risk to inmate health or safety.@ Id. at 837; Anderson v. County of Kern, 45 F.3d

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1310, 1313 (9th Cir. 1995). To satisfy the subjective prong, a plaintiff must show more than

Second, subjectively, the prison official must Aknow of and disregard an

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mere inadvertence or negligence. Neither negligence nor gross negligence will constitute

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deliberate indifference. Farmer at 833, & n. 4; Estelle v. Gamble, 429 U.S. 97, 106 (1976).

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The Farmer court concluded that Asubjective recklessness as used in the criminal law is a

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familiar and workable standard that is consistent with the Cruel and Unusual Punishments

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Clause@ and adopted this as the test for deliberate indifference under the Eighth Amendment.

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Farmer at 839-40.

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Plaintiff states that defendants “acted with deliberate indifference towards plaintiff (sic)

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civil liberty(ies)/Due Process rights guaranteed by law. . . .” (First Amd Cmp at 8 ¶29.)

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Plaintiff’s allegations in the First Amended Complaint do not support a claim for deliberate

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indifference against any of the defendants. Plaintiff fails to allege facts showing that any of the

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defendants acted or failed to act, while knowing and deliberately disregarding a substantial risk

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of serious harm to Plaintiff. Therefore, Plaintiff fails to state a claim for deliberate indifference

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under the Eighth Amendment.

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F.

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Plaintiff brings claims for violation of Title 15 of the California Code of Regulations,

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violation of his contract rights, and negligence. Plaintiff is informed that violation of state tort

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law, state regulations, rules and policies of the CDCR, or other state law is not sufficient to

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state a claim for relief under ' 1983. To state a claim under ' 1983, there must be a deprivation

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of federal constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976). Although

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the court may exercise supplemental jurisdiction over state law claims, Plaintiff must first have

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a cognizable claim for relief under federal law. See 28 U.S.C. ' 1367. In this instance, the

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Court fails to find any cognizable federal claims in the First Amended Complaint. Therefore,

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Plaintiff=s state law claims fail.

State Law Claims

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G.

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Plaintiff makes reference to the “Tort Claim Act” on the front page of the First

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Amended Complaint. (First Amd Cmp at 1.) To the extent that Plaintiff seeks to proceed

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under California’s Tort Claims Act or the Federal Tort Claims Act, Plaintiff fails to state a

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cognizable claim.

Tort Claims Act

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California=s Tort Claims Act requires that a tort claim against a public entity or its

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employees be presented to the California Victim Compensation and Government Claims Board,

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formerly known as the State Board of Control, no more than six months after the cause of

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action accrues.

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Presentation of a written claim, and action on or rejection of the claim are conditions precedent

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to suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245, 90 P.3d 116,

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124, 13 Cal.Rptr.3d 534, 543 (2004); Mangold v. California Pub. Utils. Comm=n, 67 F.3d 1470,

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1477 (9th Cir. 1995). To state a tort claim against a public employee, a plaintiff must allege

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compliance with the Tort Claims Act.

Cal. Gov=t Code '' 905.2, 910, 911.2, 945.4, 950-950.2 (West 2013).

Bodde, 32 Cal.4th at 1245, 90 P.3d at 124, 13

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Cal.Rptr.3d at 543; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police Dept., 839

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F.2d 621, 627 (9th Cir. 1988). Plaintiff fails to show compliance with California’s Tort Claims

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Act, and therefore he fails to state a claim under California’s Tort Claims Act.

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The Federal Tort Claims Act (FTCA) authorizes tort actions against the United States if

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the United States, as a private person, would be liable to the plaintiff under California tort law.

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United States v. Olson, 546 U.S. 43, 44, 126 S.Ct. 510, 511 (2005); Delta Savings Bank v.

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United States, 265 F.3d 1017, 1025 (9th Cir. 2001). “The United States is the only proper

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defendant in a [Federal Tort Claims Act] action.” Lance v. United States, 70 F.3d 1093, 1095

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(9th Cir. 1995) (citing Woods v. United States, 720 F.2d 1451, 1452 n.1 (9th Cir. 1983)). A

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suit may not be instituted against the United States under the FTCA unless the claim is first

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presented to the appropriate federal agency and one of the following conditions is met: the

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claim is finally denied, or six months have passed without a final resolution having been made.

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28 U.S.C. § 2675(a). The claim presentation requirement is a jurisdictional prerequisite to

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bringing suit and must be affirmatively alleged in the complaint. Gillispie v. Civiletti, 629 F.2d

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637, 640 (9th Cir. 1980). Plaintiff fails to name the United States as a defendant and fails to

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allege in his complaint that he presented a claim to the appropriate federal agency. Plaintiff’s

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allegation that he filed an inmate appeal does not satisfy the exhaustion requirement with

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respect to his FTCA claim. Therefore, Plaintiff fails to state a claim under the FTCA.

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///
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H.

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Plaintiff alleges that Defendants failed to respond properly to his inmate appeals.

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Defendants= actions in responding to Plaintiff=s appeals, alone, cannot give rise to any claims

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for relief under section 1983 for violation of due process. A[A prison] grievance procedure is a

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procedural right only, it does not confer any substantive right upon the inmates.@ Buckley v.

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Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10

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(N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty

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interest in processing of appeals because no entitlement to a specific grievance procedure);

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Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure

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confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).

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AHence, it does not give rise to a protected liberty interest requiring the procedural protections

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envisioned by the Fourteenth Amendment.@ Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638

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F. Supp. 315, 316 (E.D. Mo. 1986). Actions in reviewing a prisoner=s administrative appeal,

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without more, are not actionable under section 1983. Buckley, 997 F.2d at 495. Thus, since he

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has neither a liberty interest, nor a substantive right in inmate appeals, Plaintiff fails to state a

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cognizable claim for the processing and/or reviewing of his 602 inmate appeals.

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V.

Inmate Appeals Process

CONCLUSION AND ORDER

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The Court finds that Plaintiff=s First Amended Complaint fails to state any claims upon

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which relief can be granted under ' 1983 against any defendant. In this action, the court

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previously granted Plaintiff an opportunity to amend the complaint, with ample guidance by the

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court. Plaintiff has now filed two complaints without alleging facts against any defendant

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which state a claim under ' 1983. The court finds that the deficiencies outlined above are not

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capable of being cured by amendment, and therefore further leave to amend should not be

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granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Therefore, IT IS HEREBY ORDERED that:

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1.

Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e), this action is

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DISMISSED with prejudice for failure to state a claim upon which relief may be

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granted under ' 1983;
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2.

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This dismissal is subject to the Athree-strikes@ provision set forth in 28 U.S.C. '
1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011); and

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3.

The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:

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January 27, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

6i0kij8d

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