McKenzie v. Banuelos et al

Filing 13

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, Thirty-Day Deadline, signed by Magistrate Judge Dennis L. Beck on 3/11/2015. First Amended Complaint due by 4/13/2015. (Attachments: # 1 Amended Complaint Form)(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUSTAVO MCKENZIE,

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Plaintiff,

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Case No. 1:14-cv-00434 AWI DLB PC
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
THIRTY-DAY DEADLINE

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E. BANUELOS, et al.,

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Defendants.

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Plaintiff Gustavo McKenzie (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March 25,

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2014. He names Correctional Officers E. Banuelos, L. Gallardo, G. Stoll, and Charlet, Correctional

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Sergeant D. B. Hernandez, and Appeal Coordinators S. Harrison and Karen Cribbs as Defendants.

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A.

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SCREENING REQUIREMENT
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). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
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dismiss the case at any time if the court determines that . . . the action or 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 must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to
‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 555). While factual
allegations are accepted as true, legal conclusions are not. Id.

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other
federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092
(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.
Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff’s allegations must link the actions or
omissions of each named defendant to a violation of his rights; there is no respondeat superior
liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d
1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009);
Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim
for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S.
at 678; Moss, 572 F.3d at 969.
B.

SUMMARY OF PLAINTIFF’S ALLEGATIONS
Plaintiff is currently housed at Pleasant Valley State Prison; however, he was housed at

California State Prison (“CSP”), Corcoran, in the Security Housing Unit (“SHU”) at Facility A,
when the events giving rise to this action took place.
Plaintiff alleges the following. In 2011, Plaintiff was housed at Lancaster State Prison. On
December 29, 2011, he was placed in the Administrative Segregation Unit (“Ad Seg”). As a result
of his placement in Ad Seg, his personal property was taken from him and inventoried by
Correctional Officer A. Lois.
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On April 20, 2012, Plaintiff was transferred to CSP and housed in the SHU. On April 20,
2012, he was moved to another cell in the SHU. On April 23, 2012, he was temporarily placed in
Ad Seg pending approval of another cell move. On April 24, 2012, he returned from the Ad Seg
yard to his cell to find 8 paper bags containing his personal property which consisted of legal
documents, 3 law books, 1 dictionary, and 18 soup containers. Plaintiff asked to speak to a property
officer, and Officer Yale responded. Yale advised him that his tennis shoes, beanie, sweatshirt,
cervical pillow, etc., were not allowed in Ad Seg. Yale gave Plaintiff a copy of the SHU’s inventory
list and left.
Later that day, Plaintiff was taken back to the SHU. After he unpacked, he compared his
original inventory list from Lancaster with the SHU inventory list he received from Officer Yale.
He noticed that the SHU inventory list did not contain certain items that were on the Lancaster list,
such as typewriter ribbons, cervical pillow, and photos.
On April 25, 2012, Defendant Gallardo came to the cell with a paper bag containing
Plaintiff’s tennis shoes and beanie. Plaintiff asked her where the rest of his property was, and she
advised that it was in Ad Seg. Plaintiff responded that he was not in Ad Seg, but assigned to the
SHU, and he did not have all of his allowable property. He also advised that the inventory list did
not reflect all of the items on the prior inventory list. Defendant Gallardo became flustered and
stated, “I am not a regular,” and she walked off carrying his tennis shoes and beanie. Plaintiff wrote
a grievance based on the incident, but the grievance disappeared.
On May 7, 2012, Defendant Stoll came to the cell with the paper bag containing shoes and
beanie. Plaintiff showed Stoll the discrepancies in the two inventory lists. Defendant Stoll stated, “I
don’t inventory this shit – I pass it out.” Plaintiff then advised Stoll that there were other articles of
personal property that he should be entitled to receive such as his book, cervical pillow, magazines,
and glasses. Stoll responded, “Write a kite to Sergeant Tomakda/Tomakta,” and he walked away
with the paper bag. Plaintiff immediately wrote an Inmate Request for Interview and submitted it to
“Sgt. Tomakta” but he received no response. He submitted another request and received no
response. He submitted a third request, and it was returned on July 31, 2012, with the assertion that
Plaintiff had already appealed the issue.
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On May 10, 2012, Plaintiff submitted a second grievance (Log #CSPC-5-12-03080) which
was not returned until he sent a third grievance and letter to the warden. After he sent the letter to
the warden, Plaintiff sent a letter to the Office of Internal Affairs, which refused to investigate the
matter and instead forwarded the letter to Captain R. Whitford who refused to investigate and
accused Plaintiff of circumventing the appeal process.
Plaintiff then sent an Inmate/Parolee Request (CDCR-22) to Sgt. Tomakta explaining the
ongoing problem. Defendant Banuelos responded on June 11, 2012, contending that “all [of
Plaintiff’s] SHU and Ad Seg allowables were issued to [Plaintiff] while housed in ASU 1 and 4A,”
and that Plaintiff “was refusing to accept [his] tennis shoes, sweatshirt and watch cap.” Plaintiff
alleges this was an outright lie since Defendant Banuelos had not brought any property to him, and
he did not have any firsthand knowledge of dialogues between Plaintiff and the other property
officers.
A few days later, Plaintiff was advised by the floor officer to send a CDCR-22 to Banuelos,
which he did.
On June 11, 2012, Defendant Charlet came to the cell with the paper bag containing tennis
shoes and beanie. Plaintiff brought to Charlet’s attention that he was being afforded all of his
allowable property including glasses, cervical pillow, books and magazines, and that his typewriter
ribbons, pillow and photos were not reflected on the inventory list. Plaintiff explicitly stated he was
not refusing his property and that all he wanted was the rest of his allowable property and that he
needed to see whether his appliances worked before sending them home. Charlet responded, “I’ll let
them know,” and walked away with the bag containing shoes and beanie.
Plaintiff later received the second CDCR-22 from Defendant Banuelos, which stated that
Plaintiff “refused [his] property while housed in ‘4A4L-24” and also refused to sign a CDCR-193.”
Banuelos also threatened that the property would be disposed of.
After Plaintiff wrote a letter to the warden, the second and third grievances were returned.
Plaintiff resubmitted the second grievance and attached a copy of the Lancaster inventory list. The
grievance was directed to the Associate Warden in 4A, who delegated it to Defendant Hernandez.
Hernandez interviewed Plaintiff on June 25, 2012. Plaintiff alleges Hernandez disregarded
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everything Plaintiff pointed out, including the discrepancies between the property inventory lists and
the fact he hadn’t been issued his allowable property. Defendant Hernandez became argumentative.
He called the SHU property officers and returned, stating, “they issued you your tennis shoes and
glasses.” Plaintiff stated that they had not. Hernandez had a floor officer search Plaintiff’s cell with
negative results. Hernandez left and returned on July 1, 2012, and asked if Plaintiff had a chrono for
his medical pillow, to which Plaintiff stated he did and then gave it to him. Plaintiff also tried to
give Hernandez a Trust Withdrawal Order so he could have whatever property he could not have
sent home, but Hernandez refused, saying, “I don’t do that,” and walked away. On his return, he
brought a large plastic bag which contained his cervical pillow. Plaintiff inquired of the rest of his
property, and Hernandez shouted, “you refused your property.” He then walked away. Plaintiff has
not heard about his property since then. Plaintiff contends Defendants deprived him of his personal
property without due process of law in violation of the state and federal constitutions.
Plaintiff further alleges that Defendants retaliated against him for exercising his First
Amendment constitutional right to petition the government for a redress of grievance.
Plaintiff complains that he wrote a grievance on April 26, 2012, concerning Defendant
Gallardo’s actions, but the grievance disappeared.
Plaintiff states he wrote three grievances concerning Defendant Stoll’s actions. The first two
allegedly disappeared, and the third was returned on July 31, 2012, with no response to the problem.
Plaintiff states he wrote a CDCR-22 Request for Interview addressed to Sgt. Tomakta.
Plaintiff states this CDCR-22 was wrongly responded to by Defendant Banuelos who falsely
contended that all allowable property had been returned to Plaintiff, that his appliances were in
working order, and that Plaintiff had refused some of the property. Plaintiff responded to the
CDCR-22 that some of his property was not being returned, but the CDCR-22 was never returned.
Plaintiff’s second CDCR-22 was addressed to Defendant Banuelos. Banuelos responded that
Plaintiff had refused his property and refused to sign a CDCR-22 while house in 4A4L-24, and as
such, his property was being disposed of.
Plaintiff states his second grievance (Log #CSPC-5-12-03080) was wrongly delegated to
Defendant Hernandez. Plaintiff states he was supposed to receive a “First Level Interview” but
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instead Hernandez came to argue with him and dispute his documents. Plaintiff states Hernandez
refused Plaintiff’s requested witness and wrongly stated that Plaintiff refused to sign a CDCR-193
for the disposition of his property. Plaintiff states on July 1, 2012, he attempted to complete a
CDCR-193 for Defendant Hernandez, but Hernandez refused to accept it.
Plaintiff claims Defendant Harrison failed to screen the grievance for fifteen days after he’d
submitted it, and then returned it allegedly because Plaintiff had written a letter to the warden.
Plaintiff claims he submitted a request that his grievance be returned, and the request was answered
by Harrison. Harrison said it was not due to be returned until August 3, 2012. On August 12, 2012,
Plaintiff followed up with another request for a return of grievance. Plaintiff alleges that Harrison
lied and said the grievance had been completed and returned to Plaintiff on July 26, 2012. Harrison
suggested that if Plaintiff needed a copy, he could request it from his correctional counselor.
Plaintiff attempted to secure a copy but was denied because he did not have sufficient funds.
Plaintiff obtained an Olsen Review and found that grievance #03080 was missing from his
central file. After numerous efforts over a period of six months, Plaintiff obtained a copy of
grievance #03080.
Plaintiff further contends that Defendant Cribbs arbitrarily rejected his grievance #06531
against Defendant Harrison, stating, “your original appeal was completed and returned to you on 726-12. If you are requesting a copy, you must provide a trust withdrawal.” Plaintiff did so but he
received it back with a notice that he must provide a trust withdrawal. Plaintiff did so again, and it
was returned to him with the notice that his trust account balance was zero, so his request would not
be completed at that time. Plaintiff resubmitted his grievance and pointed out that he was entitled to
a copy of grievance #03080. Defendant Cribbs then attached a copy of grievance #03080 and
advised Plaintiff that his claims that appeals office staff deliberately refused to return his appeal has
no merit as his appeal was completed and returned to him via institutional mail on July 26, 2012.
Plaintiff contends this action on grievance #06531 denied his channel of grievance.
Plaintiff then resubmitted both grievances (03080 and 06531). Defendant Cribbs
immediately canceled grievance #03080 for failing to resubmit it after it was sent back to him on
July 26, 2012. Shortly thereafter, grievance #06531 was arbitrarily canceled for failing to correct
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and return a rejected appeal within thirty calendar days. Plaintiff suggests that it can be inferred that
Defendant Cribbs canceled the grievance. Plaintiff further contends the cancellation was erroneous
because his appeal was well within the time limits.

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Plaintiff concludes that Defendants Gallardo, Stoll, Banuelos, Hernandez, Harrison, and
Cribbs retaliated against him for exercising his rights to file grievances by canceling his grievances,
by failing to respond to them, or by destroying them.
C.

DISCUSSION
1.

Due Process

The Due Process Clause protects prisoners from being deprived of property without due
process of law, Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963 (1974), and prisoners have a
protected interest in their personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974).
However, while an authorized, intentional deprivation of property is actionable under the Due
Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13, 104 S.Ct. 3194 (1984) (citing Logan
v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct. 1148 (1982)); Quick v. Jones, 754 F.2d
1521, 1524 (9th Cir. 1985), “[a]n unauthorized intentional deprivation of property by a state
employee does not constitute a violation of the procedural requirements of the Due Process Clause
of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available,”
Hudson, 468 U.S. at 533.
Here, the deprivation or destruction of Plaintiff’s personal property was the alleged result of
Defendants’ unauthorized intentional or negligent wrongdoing. The Due Process Clause does not
provide redress for the loss of personal property under circumstances described by Plaintiff. Hudson
v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194 (1984); Nevada Dept. of Corrections v. Greene, 648
F.3d 1014, 1019 (9th Cir. 2011); Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994).
Furthermore, Plaintiff’s assertion that he had a protected liberty interest at stake lacks merit.
Wilkinson v. Austin, 545 U.S. 209, 221-23, 125 S.Ct. 2384 (2005); Myron v. Terhune, 476 F.3d 716,
718 (9th Cir. 2007); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855
F.2d 639, 640 (9th Cir. 1988). Plaintiff’s due process claims should be dismissed.

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2.

Retaliation

Plaintiff alleges that Defendants Gallardo, Stoll, Banuelos, Hernandez, Harrison, and Cribbs
retaliated against him. Plaintiff appears to allege that Defendants are liable with respect to their
handling of Plaintiff's inmate grievances. Prisoners have no stand-alone due process rights related to
the administrative grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see
also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no liberty interest
entitling inmates to a specific grievance process). Because there is no right to any particular
grievance process, it is impossible for due process to have been violated by ignoring or failing to
properly process grievances. Numerous district courts in this circuit have reached the same
conclusion. See Smith v. Calderon, 1999 WL 1051947 (N.D.Cal. 1999) (finding that failure to
properly process grievances did not violate any constitutional right); Cage v. Cambra, 1996 WL
506863 (N.D.Cal. 1996) (concluding that prison officials' failure to properly process and address
grievances does not support constitutional claim); James v. U.S. Marshal's Service, 319 Ark. 312,
891 S.W.2d 375, 1995 WL 29580 (N.D.Cal. 1995) (dismissing complaint without leave to amend
because failure to process a grievance did not implicate a protected liberty interest); Murray v.
Marshall, 1994 WL 245967 (N.D.Cal. 1994) (concluding that prisoner's claim that grievance process
failed to function properly failed to state a claim under § 1983).
Prisoners do, however, retain a First Amendment right to petition the government through the
prison grievance process. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). Therefore,
interference with the grievance process may, in certain circumstances, implicate the First
Amendment. Such a claim would be based on the theory that interference with the grievance
process resulted in a denial of the inmate's right to access to the courts. This right includes
petitioning the government through the prison grievance process. See Lewis v. Casey, 518 U.S. 343,
346, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491,
52 L.Ed.2d 72 (1977); Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir.1995) (discussing the right in the
context of prison grievance procedures). The right of access to the courts, however, only requires
that prisoners have the capability of bringing challenges to sentences or conditions of confinement.
See Lewis, 518 U.S. at 356–57. Moreover, the right is limited to non-frivolous criminal appeals,
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habeas corpus actions, and § 1983 suits. See id. at 353 n. 3 & 354–55. Therefore, the right of access
to the courts is only a right to present these kinds of claims to the court, and not a right to discover
claims or to litigate them effectively once filed. See id. at 354–55.

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As a jurisdictional requirement flowing from the standing doctrine, the prisoner must allege
an actual injury. See id. at 349. “Actual injury” is prejudice with respect to contemplated or existing
litigation, such as the inability to meet a filing deadline or present a non-frivolous claim. See id.; see
also Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir.2007). Delays in providing legal materials or
assistance which result in prejudice are “not of constitutional significance” if the delay is reasonably
related to legitimate penological purposes. Lewis, 518 U.S. at 362.

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In this case, Plaintiff merely alleges that defendants interfered with his ability to present
grievances. He does not, however, allege that such interference resulted in any actual injury with
respect to contemplated or ongoing habeas or civil rights litigation. To state a claim, the interference
complained of would have had to result in Plaintiff being unable to present or pursue a habeas or
civil rights claim. Plaintiff has not indicated any such inability. Rather, Plaintiff alleges that the
interference resulted in a deprivation or loss of personal property. Thus, Plaintiff fails to state a
claim. Nevertheless, Plaintiff will be provided an opportunity to amend to allege facts, if any,
showing how, if at all, the alleged interference with the grievance process resulted in an actual
injury.
D.

CONCLUSION AND ORDER
Plaintiff’s complaint fails to state a claim upon which relief may be granted under section

1983. The Court will provide Plaintiff with an opportunity to file an amended complaint. Akhtar v.
Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what
each named Defendant did that led to the deprivation of Plaintiff’s federal rights and liability may
not be imposed on supervisory personnel under the theory of mere respondeat superior, Iqbal, 556
U.S. at 676-77; Starr v. Baca, 652 F.3d 1202, 1205-07 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101
(2012). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to
relief above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).
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Finally, an amended complaint supercedes the original complaint, Lacey v. Maricopa
County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be “complete in itself without
reference to the prior or superceded pleading,” Local Rule 220.

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ORDER
Accordingly, it is HEREBY ORDERED that:
1.

Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a claim

under section 1983;
2.

The Clerk’s Office shall send Plaintiff a civil rights complaint form;

3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an

amended complaint; and
4.

If Plaintiff fails to file an amended complaint in compliance with this order, this

action will be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

March 11, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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