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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE ELLIOTT COTTLE, 12 Plaintiff, 13 14 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., 15 Defendants. ORDER THAT THIS DISMISSAL IS SUBJECT TO THE “THREE STRIKES” PROVISION OF 28 U.S.C. § 1915(g) 16 17 ORDER DIRECTING CLERK TO CLOSE CASE 18 19 20 21 I. BACKGROUND 22 Lawrence Elliott Cottle (APlaintiff@) is a state prisoner proceeding pro se and in forma 23 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 24 commencing this action on June 14, 2012. (Doc. 1.) 25 On June 29, 2012, Plaintiff consented to Magistrate Judge jurisdiction in this action 26 pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (Doc. 6.) 27 Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of 28 /// 1 1 California, the undersigned shall conduct any and all proceedings in the case until such time as 2 reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 3 The court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an order 4 on February 20, 2013, dismissing the Complaint for failure to state a claim, with leave to 5 amend. (Doc. 9.) On May 15, 2013, Plaintiff filed the First Amended Complaint, which is 6 now before the court for screening. (Doc. 17.) 7 II. SCREENING REQUIREMENT 8 The court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a). 10 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 11 legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or 12 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 13 ' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been 14 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 15 appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii). 16 A complaint is required to contain Aa short and plain statement of the claim showing 17 that the pleader is entitled to relief . . . .@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 18 are not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by 19 mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 20 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 21 (2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge 22 unwarranted inferences.@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 23 (internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual 24 matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S. 25 at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere 26 possibility of misconduct falls short of meeting this plausibility standard. Id. at 678-79; Moss 27 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 28 /// 2 1 2 III. SUMMARY OF FIRST AMENDED COMPLAINT Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility 3 in Corcoran, California. 4 occurred at the California Correctional Institution in Tehachapi, California, when Plaintiff was 5 incarcerated there. Plaintiff names as defendants Lieutenant D. Randall, Sergeant (Sgt.) G. 6 Doser, T. W. Steadman (Associate Warden), K. Holland (Chief Deputy Warden), Captain R. 7 Davis (Appeals Examiner), and D. Foston (Chief, Inmate Appeals Branch). Plaintiff’s factual 8 allegations follow. 9 The events at issue in the First Amended Complaint allegedly On June 17, 2010, during recreational yard recall, a group disturbance ensued involving 10 several inmates fighting. 11 assigned by officers as a staging area for Plaintiff’s building during yard recall. When Plaintiff 12 heard “Get down,” he immediately got down in the concrete area directly in front of him, to 13 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 14 Following the disturbance, all African-American inmates who were “down” in selected 15 areas of the recreational yard were placed in restraints and escorted off the yard to be strip- 16 searched and medically evaluated, to determine whether they were involved in the disturbance. 17 Plaintiff was medically evaluated and cleared, with no injuries, redness, or swelling anywhere 18 on his body. 19 All African-American inmates who were escorted off the yard were subsequently 20 placed in administrative segregation (Ad-Seg), pending investigation. Plaintiff was unjustly 21 placed in Ad-Seg from June 17, 2010 until November 30, 2010. 22 On July 8, 2010, Plaintiff was issued a Rules Violation Report for participation in a riot, 23 with Sgt. G. Doser named as the employee who reported that Plaintiff was observed striking 24 other inmates in the head and upper torso, based on a review of a yard video recording of the 25 riot. On July 9, 2010, Plaintiff was allowed to personally review the video. Despite Sgt. 26 Doser’s statement, Plaintiff is not in the video. 27 When Officer J. Duran (not a named defendant) introduced himself as an Investigative 28 Employee, Plaintiff requested that the video recording and Sgt. Doser be present at the 3 1 disciplinary hearing. On July 13, 2010, Officer Duran questioned Sgt. Doser to identify who 2 Plaintiff was observed fighting with during the disturbance, and Sgt. Doser responded, “I would 3 have to review the tape.” (First Amd Cmp at 6:13.) Sgt. Doser never returned with an answer. 4 On July 30, 2010, a disciplinary hearing was conducted by Lt. D. Randall. The core 5 evidence relied on was the yard recording, allegedly implicating Plaintiff in the disturbance, 6 and the alleged observation by Sgt. Doser. In light of this fact, Plaintiff requested that Sgt. 7 Doser be present at the disciplinary hearing, along with the yard video recording. Sgt. Doser 8 was present. However, Lt. Randall refused to allow the video for Plaintiff’s defense. When Lt. 9 Randall wrote his report, finding Plaintiff guilty, he purposely left out Plaintiff’s request for the 10 video to be present at the hearing. Plaintiff was found guilty of participation in a riot and was 11 placed in Ad-Seg. Chief Disciplinary Officer T. W. Steadman approved this disposition, fully 12 aware that Plaintiff was denied the core part of his defense. 13 On August 29, 2010, Plaintiff submitted an inmate grievance regarding the alleged due 14 process violations. On October 13, 2010 and October 14, 2010, defendants Steadman and 15 Holland denied Plaintiff’s appeal and upheld the finding of guilt, even though they 16 acknowledged Plaintiff was not in the video recording of the riot. Defendants Steadman, 17 Holland, and Appeals Examiner R. Davis rubberstamped the findings, acting negligently and 18 recklessly in disregard of the evidence. Defendants Steadman and Holland incompetently 19 failed to follow Title 15 of the California Code of Regulations. As a result of the actions of 20 defendants Steadman, Holland, Davis, and Foston, Plaintiff suffered anxiety, emotional 21 distress, and retaliation. 22 Defendants Foston, Steadman, Holland, Randall, Doser, and Davis acted with deliberate 23 difference towards Plaintiff’s due process rights guaranteed under law, and Plaintiff’s contract 24 rights under Title 15. Plaintiff suffered violation of his constitutional rights under the Fourth, 25 Fifth, Eighth, and Fourteenth Amendments. Defendants’ actions did not reasonably advance 26 any legitimate correctional goal. 27 28 Plaintiff requests monetary damages, declaratory relief, and costs of suit. /// 4 1 2 IV. PLAINTIFF’S CLAIMS The Civil Rights Act under which this action was filed provides: 3 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. 4 5 6 7 42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal 8 Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) 9 (internal quotations omitted). ATo the extent that the violation of a state law amounts to the 10 deprivation of a state-created interest that reaches beyond that guaranteed by the federal 11 Constitution, Section 1983 offers no redress.@ Id. 12 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 13 under color of state law and (2) the defendant deprived him of rights secured by the 14 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 15 2006). AA person >subjects= another to the deprivation of a constitutional right, within the 16 meaning of section 1983, if he does an affirmative act, participates in another=s affirmative acts, 17 or omits to perform an act which he is legally required to do that causes the deprivation of 18 which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). AThe 19 requisite causal connection can be established not only by some kind of direct, personal 20 participation in the deprivation, but also by setting in motion a series of acts by others which 21 the actor knows or reasonably should know would cause others to inflict the constitutional 22 injury.@ Id. at 743-44. 23 A. 24 The Due Process Clause protects prisoners from being deprived of liberty without due 25 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of 26 action for deprivation of procedural due process, a plaintiff must first establish the existence of 27 a liberty interest for which the protection is sought. Liberty interests may arise from the Due 28 Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68 (1983). Procedural Due Process 5 1 The Due Process Clause itself does not confer on inmates a liberty interest in avoiding 2 Amore adverse conditions of confinement,@ or in being confined in the general prison population 3 instead of administrative segregation. Id.; see May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 4 1997) (convicted inmate=s due process claim fails because he has no liberty interest in freedom 5 from state action taken within sentence imposed and administrative segregation falls within the 6 terms of confinement ordinarily contemplated by a sentence) (quotations omitted); Resnick v. 7 Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (plaintiff=s placement and retention in the SHU was 8 within range of confinement normally expected by inmates in relation to ordinary incidents of 9 prison life and, therefore, plaintiff had no protected liberty interest in being free from 10 confinement in the SHU) (quotations omitted). 11 Under state law, the existence of a liberty interest created by prison regulations is 12 determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481- 13 84, 115 S.Ct. 2293 (1995). Liberty interests created by state law are Agenerally limited to 14 freedom from restraint which . . . imposes atypical and significant hardship on the inmate in 15 relation to the ordinary incidents of prison life.@ Id. at 484; Myron v. Terhune, 476 F.3d 716, 16 718 (9th Cir. 2007). 17 Plaintiff fails to establish the existence of a protected liberty interest in remaining free 18 from Ad-Seg. Therefore, Plaintiff fails to state a cognizable claim for violation of his rights to 19 due process based on his detention in Ad-Seg. Moreover, even if Plaintiff could establish a 20 protected liberty interest, he has not alleged facts demonstrating that he was not afforded 21 sufficient due process. 22 APrison disciplinary proceedings are not part of a criminal prosecution, and the full 23 panoply of rights due a defendant in such proceedings does not apply.@ Wolff, 418 U.S. at 556. 24 With respect to prison disciplinary proceedings, the minimum procedural requirements that 25 must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the 26 prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his 27 defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for 28 taking disciplinary action; (4) the right of the prisoner to call witnesses in his defense, when 6 1 permitting him to do so would not be unduly hazardous to institutional safety or correctional 2 goals; and (5) legal assistance to the prisoner where the prisoner is illiterate or the issues 3 presented are legally complex. Id. at 563-71. As long as the five minimum Wolff requirements 4 are met, due process has been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994). 5 ASome evidence@ must support the decision of the hearing officer. Superintendent v. Hill, 472 6 U.S. 445, 455 (1985). The standard is not particularly stringent and the relevant inquiry is 7 whether Athere is any evidence in the record that could support the conclusion reached . . . .@ Id. 8 at 455-56 (emphasis added). 9 Here, Plaintiff alleges that on July 30, 2010, a disciplinary hearing was held. Plaintiff 10 does not claim, or allege facts demonstrating, that the five procedural requirements under Wolff 11 were not met or that there was no evidence presented against him. Therefore, Plaintiff fails to 12 state a due process claim for his detention in Ad-Seg. 13 B. 14 Plaintiff alleges that defendant Lt. D. Randall, who conducted Plaintiff’s disciplinary 15 hearing, refused to allow Plaintiff to use video evidence to defend himself at the hearing, and 16 when Lt. D. Randall wrote his report, he purposely left out Plaintiff’s request for the video to 17 be present at the hearing. Plaintiff alleges that his witness, Sgt. Doser, falsely implicated 18 Plaintiff in the disturbance that was the subject of the hearing. Plaintiff also alleges that 19 defendant T. W. Steadman, the Chief Disciplinary Officer, approved the finding of Plaintiff’s 20 guilt, fully aware that Plaintiff had been denied the core of his defense. Improper Disciplinary Hearing 21 In Edwards v. Balisok, 520 U.S. 641, 644 (1997), the United States Supreme Court 22 applied the doctrine articulated in Heck v. Humphrey, 512 U.S. 477, 487 (1994), to prison 23 disciplinary hearings. In Heck, the Court held that a state prisoner’s claim for damages for 24 unconstitutional conviction or imprisonment is not cognizable under 42 U.S.C. § 1983 if a 25 judgment in favor of plaintiff would necessarily imply the invalidity of his conviction or 26 sentence, unless the prisoner can demonstrate that the conviction or sentence has previously 27 been invalidated. Heck, 512 U.S. at 487. In applying the principle to the facts of Balisok, the 28 Court held that a claim challenging the procedures used in a prison disciplinary hearing, even if 7 1 such a claim seeks money damages and no injunctive relief, is not cognizable under § 1983 if 2 the nature of the inmate’s allegations are such that, if proven, would necessarily imply the 3 invalidity of the result of the prison disciplinary hearing. Balisok, 520 U.S. at 646. Because 4 such a challenge, if successful, would invalidate the duration of the inmate’s confinement, it is 5 properly brought as a habeas corpus petition and not under § 1983. Heck, 512 U.S. at 487; 6 Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Here, Plaintiff’s central allegation is that the 7 charges against him were false. Such a claim necessarily implies the invalidity of Plaintiff’s 8 disciplinary conviction. Plaintiff does not allege that his disciplinary conviction has been 9 reversed, expunged or otherwise invalidated. This claim should therefore be dismissed. 10 C. 11 Fourth Amendment 12 The Fourth Amendment guarantees an individual’s right to be secure in his person 13 against unreasonable arrests, as well as against unreasonable searches of houses and seizures of 14 papers and effects. U.S. Const. amend. IV. However, “[l]awful incarceration necessarily 15 entails limitations upon many of the rights enjoyed by ordinary citizens,” Taylor v. Knapp, 871 16 F.2d 803, 806 (9th Cir. 1989) (citing Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194 17 (1984); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974), and 18 “[a]n inmate’s fourth amendment rights are among the rights subject to curtailment,” Taylor at 19 806. For example, it is well-settled that a state prisoner has no reasonable expectation of 20 privacy in his cell and is not entitled to Fourth Amendment protection against unreasonable 21 searches and seizures. See Hudson, 468 U.S. at 527-28; Nakao v. Rushen, 766 F.2d 410, 412 22 (9th Cir.1985). Fourth Amendment/Personal Property Claim 23 Plaintiff alleges that when he was placed in Ad-Seg, “all [of his] personal property 24 [was] confiscated, pending investigation.” (First Amd Cmp at 5 ¶17.) Plaintiff also states that 25 he “suffered a violation of his constitutional rights” under the Fourth Amendment. (Id. at 9 26 ¶31.) To the extent that Plaintiff seeks to state a claim under the Fourth Amendment based on 27 the confiscation of his personal property, Plaintiff’s claim fails. As discussed above, a state 28 /// 8 1 prisoner is not entitled to Fourth Amendment protection against unreasonable searches and 2 seizures. Therefore, Plaintiff fails to state a Fourth Amendment claim. 3 Personal Property 4 Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 5 728, 730 (9th Cir. 1974). However, while an authorized, intentional deprivation of property is 6 actionable under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13, 104 7 S.Ct. 3194 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct. 8 1148 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), A[a]n unauthorized 9 intentional deprivation of property by a state employee does not constitute a violation of the 10 procedural requirements of the Due Process Clause of the Fourteenth Amendment if a 11 meaningful postdeprivation remedy for the loss is available,@ Hudson, 468 U.S. at 533. 12 California Law provides an adequate post-deprivation remedy for any property 13 deprivations. See Cal. Gov't Code '' 810-895; Barnett v. Centoni, 31 F.3d 813, 816-17 (9th 14 Cir. 1994). California=s Tort Claims Act requires that a tort claim against a public entity or its 15 employees be presented to the California Victim Compensation and Government Claims Board, 16 formerly known as the State Board of Control, no more than six months after the cause of 17 action accrues. 18 Presentation of a written claim, and action on or rejection of the claim are conditions precedent 19 to suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245, 90 P.3d 116, 20 124, 13 Cal.Rptr.3d 534, 543 (2004); Mangold v. California Pub. Utils. Comm=n, 67 F.3d 1470, 21 1477 (9th Cir. 1995). To state a tort claim against a public employee, a plaintiff must allege 22 compliance with the Tort Claims Act. State v. Superior Court, 32 Cal.4th at 1245, 90 P.3d at 23 124, 13 Cal.Rptr.3d at 543; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police 24 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). 25 Plaintiff alleges that his personal property was improperly confiscated, which indicates 26 that the deprivation of property was intentional and unauthorized. Thus, Plaintiff=s remedy 27 would be found under California law. Plaintiff fails to show compliance with the California 28 Tort Claims Act, and therefore his property claim is not cognizable under federal or state law. 9 1 D. 2 AWithin the prison context, a viable claim of First Amendment retaliation entails five 3 basic elements: (1) An assertion that a state actor took some adverse action against an inmate 4 (2) because of (3) that prisoner=s protected conduct, and that such action (4) chilled the inmate=s 5 exercise of his First Amendment rights, and (5) the action did not reasonably advance a 6 legitimate correctional goal.@ Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) 7 (quotation marks omitted); accord Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) and 8 Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012). Retaliation 9 Plaintiff states that the violation of his rights “result[ed] in, among other things 10 retaliation” and caused him to suffer “assessive (sic) retaliation/form(s) of reprisal(s).” (First 11 Amd Cmp at 8 ¶28, 9 ¶31.) These statements, without more, are not sufficient to state a claim 12 for retaliation. Detailed factual allegations are not required, but A[t]hreadbare recitals of the 13 elements of a cause of action, supported by mere conclusory statements, do not suffice.@ Iqbal, 14 556 U.S. at 678. Therefore, Plaintiff fails to state a claim for retaliation. Deliberate Indifference – Eighth Amendment Claim 15 E. 16 The Eighth Amendment protects prisoners from inhumane methods of punishment and 17 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th 18 Cir. 2006). Extreme deprivations are required to make out a conditions of confinement claim, 19 and only those deprivations denying the minimal civilized measure of life=s necessities are 20 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 21 503 U.S. 1, 9, 112 S.Ct. 995 (1992) (citations and quotations omitted). AAn Eighth Amendment 22 claim that a prison official has deprived inmates of humane conditions of confinement must 23 meet two requirements, one objective and the other subjective.@ Allen v. Sakai, 48 F.3d 1082, 24 1087 (9th Cir. 2010) cert. denied, 514 U.S. 1065 (1995). First, the alleged deprivation must be, 25 in objective terms, Asufficiently serious.@ Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 26 1970 (1994). 27 excessive risk to inmate health or safety.@ Id. at 837; Anderson v. County of Kern, 45 F.3d 28 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 10 1 mere inadvertence or negligence. Neither negligence nor gross negligence will constitute 2 deliberate indifference. Farmer at 833, & n. 4; Estelle v. Gamble, 429 U.S. 97, 106 (1976). 3 The Farmer court concluded that Asubjective recklessness as used in the criminal law is a 4 familiar and workable standard that is consistent with the Cruel and Unusual Punishments 5 Clause@ and adopted this as the test for deliberate indifference under the Eighth Amendment. 6 Farmer at 839-40. 7 Plaintiff states that defendants “acted with deliberate indifference towards plaintiff (sic) 8 civil liberty(ies)/Due Process rights guaranteed by law. . . .” (First Amd Cmp at 8 ¶29.) 9 Plaintiff’s allegations in the First Amended Complaint do not support a claim for deliberate 10 indifference against any of the defendants. Plaintiff fails to allege facts showing that any of the 11 defendants acted or failed to act, while knowing and deliberately disregarding a substantial risk 12 of serious harm to Plaintiff. Therefore, Plaintiff fails to state a claim for deliberate indifference 13 under the Eighth Amendment. 14 F. 15 Plaintiff brings claims for violation of Title 15 of the California Code of Regulations, 16 violation of his contract rights, and negligence. Plaintiff is informed that violation of state tort 17 law, state regulations, rules and policies of the CDCR, or other state law is not sufficient to 18 state a claim for relief under ' 1983. To state a claim under ' 1983, there must be a deprivation 19 of federal constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976). Although 20 the court may exercise supplemental jurisdiction over state law claims, Plaintiff must first have 21 a cognizable claim for relief under federal law. See 28 U.S.C. ' 1367. In this instance, the 22 Court fails to find any cognizable federal claims in the First Amended Complaint. Therefore, 23 Plaintiff=s state law claims fail. State Law Claims 24 G. 25 Plaintiff makes reference to the “Tort Claim Act” on the front page of the First 26 Amended Complaint. (First Amd Cmp at 1.) To the extent that Plaintiff seeks to proceed 27 under California’s Tort Claims Act or the Federal Tort Claims Act, Plaintiff fails to state a 28 cognizable claim. Tort Claims Act 11 1 California=s Tort Claims Act requires that a tort claim against a public entity or its 2 employees be presented to the California Victim Compensation and Government Claims Board, 3 formerly known as the State Board of Control, no more than six months after the cause of 4 action accrues. 5 Presentation of a written claim, and action on or rejection of the claim are conditions precedent 6 to suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245, 90 P.3d 116, 7 124, 13 Cal.Rptr.3d 534, 543 (2004); Mangold v. California Pub. Utils. Comm=n, 67 F.3d 1470, 8 1477 (9th Cir. 1995). To state a tort claim against a public employee, a plaintiff must allege 9 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 10 Cal.Rptr.3d at 543; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police Dept., 839 11 F.2d 621, 627 (9th Cir. 1988). Plaintiff fails to show compliance with California’s Tort Claims 12 Act, and therefore he fails to state a claim under California’s Tort Claims Act. 13 The Federal Tort Claims Act (FTCA) authorizes tort actions against the United States if 14 the United States, as a private person, would be liable to the plaintiff under California tort law. 15 United States v. Olson, 546 U.S. 43, 44, 126 S.Ct. 510, 511 (2005); Delta Savings Bank v. 16 United States, 265 F.3d 1017, 1025 (9th Cir. 2001). “The United States is the only proper 17 defendant in a [Federal Tort Claims Act] action.” Lance v. United States, 70 F.3d 1093, 1095 18 (9th Cir. 1995) (citing Woods v. United States, 720 F.2d 1451, 1452 n.1 (9th Cir. 1983)). A 19 suit may not be instituted against the United States under the FTCA unless the claim is first 20 presented to the appropriate federal agency and one of the following conditions is met: the 21 claim is finally denied, or six months have passed without a final resolution having been made. 22 28 U.S.C. § 2675(a). The claim presentation requirement is a jurisdictional prerequisite to 23 bringing suit and must be affirmatively alleged in the complaint. Gillispie v. Civiletti, 629 F.2d 24 637, 640 (9th Cir. 1980). Plaintiff fails to name the United States as a defendant and fails to 25 allege in his complaint that he presented a claim to the appropriate federal agency. Plaintiff’s 26 allegation that he filed an inmate appeal does not satisfy the exhaustion requirement with 27 respect to his FTCA claim. Therefore, Plaintiff fails to state a claim under the FTCA. 28 /// 12 1 H. 2 Plaintiff alleges that Defendants failed to respond properly to his inmate appeals. 3 Defendants= actions in responding to Plaintiff=s appeals, alone, cannot give rise to any claims 4 for relief under section 1983 for violation of due process. A[A prison] grievance procedure is a 5 procedural right only, it does not confer any substantive right upon the inmates.@ Buckley v. 6 Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 7 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty 8 interest in processing of appeals because no entitlement to a specific grievance procedure); 9 Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure 10 confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). 11 AHence, it does not give rise to a protected liberty interest requiring the procedural protections 12 envisioned by the Fourteenth Amendment.@ Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 13 F. Supp. 315, 316 (E.D. Mo. 1986). Actions in reviewing a prisoner=s administrative appeal, 14 without more, are not actionable under section 1983. Buckley, 997 F.2d at 495. Thus, since he 15 has neither a liberty interest, nor a substantive right in inmate appeals, Plaintiff fails to state a 16 cognizable claim for the processing and/or reviewing of his 602 inmate appeals. 17 V. Inmate Appeals Process CONCLUSION AND ORDER 18 The Court finds that Plaintiff=s First Amended Complaint fails to state any claims upon 19 which relief can be granted under ' 1983 against any defendant. In this action, the court 20 previously granted Plaintiff an opportunity to amend the complaint, with ample guidance by the 21 court. Plaintiff has now filed two complaints without alleging facts against any defendant 22 which state a claim under ' 1983. The court finds that the deficiencies outlined above are not 23 capable of being cured by amendment, and therefore further leave to amend should not be 24 granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 25 Therefore, IT IS HEREBY ORDERED that: 26 1. Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e), this action is 27 DISMISSED with prejudice for failure to state a claim upon which relief may be 28 granted under ' 1983; 13 1 2. 2 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 3 3. The Clerk is directed to close this case. 4 5 6 7 IT IS SO ORDERED. Dated: 8 9 10 January 27, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 6i0kij8d 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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