Galzinski v. Beard et al

Filing 15

ORDER Adopting FINDINGS AND RECOMMENDATIONS To Dismiss Amended Complaint With Prejudice For Failure/Inablility To State A Claim (Docs. 12 , 13 ), Strike Per 28 U.S.C. § 1915(g), signed by District Judge Lawrence J. O'Neill on 11/4/2014. CASE CLOSED. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HARALD MARK GALZINSKI,

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Plaintiff,
v.
BEARD, et al.,

Case No. 1:14-cv-01158-LJO-JLT (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONSTO DISMISS AMENDED
COMPLAINT WITH PREJUDICE FOR
FAILURE/INABILITY TO STATE A CLAIM
(Docs. 12, 13)

Defendants.

STRIKE PER 28 U.S.C. § 1915(g)

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Plaintiff, Harald Mark Galzinksi, is a state prisoner proceeding pro se and in forma

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

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this action on July 11, 2014. (Doc. 1.) The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302.

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The Magistrate Judge screened and dismissed Plaintiff's Complaint with leave to amend.

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(Doc. 11.) On September 4, 2014, Plaintiff filed the First Amended Complaint which was

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screened and upon which Findings and Recommendations issued that the action be dismissed for

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Plaintiff's failure/inability to state a cognizable claim. (Docs. 12, 13.) The Findings and

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Recommendations was served on Plaintiff on October 2, 2014 and contained notice that any

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objections to the Findings and Recommendations were to be filed within thirty days. (Doc. 13.)

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Plaintiff filed objections on October 29, 2014. (Doc. 14.)

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In his objections, Plaintiff states that he intended to pursue an action for the

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processing/handling of his inmate grievances under the First Amendment for violation of his right

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of access to the courts, not under the Due Process Clause of the Fourteenth Amendment (as was
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analyzed by the Magistrate Judge). (Doc. 14.) However, Plaintiff's claim fares no better under

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the First Amendment than the Fourteenth Amendment.

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Inmates do have a fundamental constitutional right of access to the courts, Lewis v. Casey,

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518 U.S. 343, 346 (1996), which extends to established grievance procedures, Bradley v. Hall, 64

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F.3d 1276, 1279 (9th Cir.1995) overruled on other grounds by Shaw v. Murphy, 532 U.S. 223,

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230, n. 2 (2001). However, the protection applies merely to the right to bring to court a grievance

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the inmate wishes to present and is limited to direct criminal appeals, habeas petitions, and civil

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rights actions. Lewis, 518 U.S. at 354. To bring a claim, the plaintiff must have suffered an

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actual injury by being shut out of court. Christopher v. Harbury, 536 U.S. 403, 415 (2002);

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Lewis, 518 U.S. at 351.
Plaintiff may not pursue a claim for denial of access to the courts based on mishandling,

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failure to respond, or rejection of his appeals by prison staff as there is no constitutionally

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protected right to have inmate grievances/appeals accepted or processed, Ramirez v. Galaza, 334

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F.3d 850, 860 (9th Cir.2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988). Plaintiff fails

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and is unable to state a cognizable claim based on the handling/processing of his inmate

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grievances/appeals -- under any Amendment to the United States Constitution.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a

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de novo review of this case. Having carefully reviewed the entire file, the Court finds the

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Findings and Recommendations to be supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:1.The Findings and Recommendations,
filed October 2, 2014 (Doc. 13), is adopted

in full;

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2.

This case is dismissed with prejudice for Plaintiff's failure to state a claim;

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3.

Dismissal of this action counts as a strike pursuant to 28 U.S.C. § 1915(g); and

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4.

The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

November 4, 2014

UNITED STATES DISTRICT JUDGE

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