Rosas v. Denny et al

Filing 10

ORDER DISMISSING Amended Complaint, With Prejudice, for Failure to State a Cognizable Claim for Relief and DENYING Pending Motion to Vacate Judgment as Moot 8 , 9 , signed by Magistrate Judge Stanley A. Boone on 1/15/15: This dismissal is subject to the "three-strikes" provision. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FEDERICO ROSAS,

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Plaintiff,
v.
D. DENNY, et al.,
Defendants.

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Case No.: 1:14-cv-01418-SAB (PC)
ORDER DISMISSING AMENDED
COMPLAINT, WITH PREJUDICE,
FOR FAILURE TO STATE A COGNIZABLE
CLAIM FOR RELIEF AND DENYING PENDING
MOTION TO VACATE JUDGMENT AS MOOT
[ECF Nos. 8, 9]

Plaintiff Federico Rosas is appearing pro se in this civil rights action pursuant to 42 U.S.C. §

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1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of the United States

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Magistrate Judge on September 22, 2014. Local Rule 302.

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On December 5, 2014, Plaintiff’s complaint was screened and dismissed, with leave to amend,

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for failure to state a cognizable claim for relief. (ECF No. 7). Now pending before the Court is

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Plaintiff’s amended complaint, filed December 29, 2014.

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I.

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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). 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 “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
A complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff names D. Denny, M. Seaman, and S. Tallerico as Defendants.

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Plaintiff contends that Defendants have violated his constitutional rights by interfering with his

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communication with the court by rejecting and/or cancelling his inmate appeals without justification.

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Plaintiff contends Defendants are inflicting intentional infliction of mental stress for which he seeks

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compensation.

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III.

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DISCUSSION

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A.

Inmate Grievance Process

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“The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of

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life, liberty, or property; and those who seek to invoke its procedural protection must establish that one

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of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Plaintiff does not a

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have protected liberty interest in the processing his appeals, and therefore, he cannot pursue a claim

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for denial of due process with respect to the handling or resolution of his appeals. Ramirez v. Galaza,

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

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Plaintiff contends that Defendants have canceled and/or rejected his inmate appeals in

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retaliation for being a “litigator.” Defendants’ actions in responding and/or processing Plaintiff’s

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appeals, alone, cannot give rise to any claims for relief under section 1983 for violation of due process.

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Accordingly, Plaintiff fails to state a cognizable claim for relief based upon the inmate appeals

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process.

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B.

Access to the Court

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Plaintiff has a constitutional right of access to the courts and prison officials may not actively

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interfere with his right to litigate. Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011).

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However, to state a viable claim for relief, Plaintiff must allege he suffered an actual injury, which is

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actual prejudice with respect to contemplated or existing litigation. Nevada Dep’t of Corr. v. Greene,

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648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis v. Casey, 518 U.S. 343, 348 (1996)) (quotation

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marks omitted). Actual injury is “actual prejudice with respect to contemplated or existing litigation.”

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Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis v. Casey, 518

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U.S. 343, 348 (1996)) (internal quotation marks omitted).

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Plaintiff fails to state a claim against any Defendants for denial of access to the courts.

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Plaintiff has not alleged sufficient facts which indicate that he suffered an actual injury with respect to

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contemplated or existing litigation. Any claim by Plaintiff that his present ability to file a civil rights

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complaint pursuant to 42 U.S.C. § 1983, was impeded no such claim can exist as Plaintiff has filed and

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this Court has reviewed the instant complaint. The court acknowledges the necessity of exhausting his
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claims prior to brining a section 1983 action. See Booth v. Churner, 532 U.S. 731, 741 (2001).

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However, Plaintiff has failed to allege that he was denied access to the courts because of the actions by

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Defendants. Accordingly, Plaintiff fails to state a cognizable claim for relief.

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C.

Leave to Amend

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Plaintiff was previously notified of the deficiencies in the complaint and granted leave to

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amend. Plaintiff has failed to cure the deficiencies and further amendment is therefore futile.

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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-1449 (9th

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Cir. 1987).

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IV.

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CONCLUSION AND ORDER
For the reasons stated above, the Court finds that Plaintiff’s amended complaint fails to state a

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claim upon which relief may be granted and further leave to amend would be futile.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s amended complaint is DISMISSED, with prejudice, for failure to state a
cognizable claim for relief;

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2.

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This dismissal is subject to the “three-strikes” provision set forth

in

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U.S.C.

§

Plaintiff’s pending motion to vacate the judgment, filed December 15, 2014,

is

1915(g). Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011); and

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3.

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DENIED as MOOT.

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IT IS SO ORDERED.

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Dated:

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January 15, 2015
UNITED STATES MAGISTRATE JUDGE

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