Toscano v. California Department of Corrections, et al.

Filing 19

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED for Plaintiff's Failure to State a Claim Upon Which Relief May Be Granted re 18 First Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Barbara A. McAuliffe on 7/19/2018. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN K. TOSCANO,

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Case No. 1:16-cv-01551-AWI-BAM (PC)

Plaintiff,

FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A CLAIM

v.
STATE OF CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION, et al.,

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(ECF No. 18)
FOURTEEN-DAY DEADLINE

Defendants.

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Findings and Recommendations
Plaintiff Benjamin K. Toscano (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action under 42 U.S.C. § 1983. The action was transferred to

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this Court on October 14, 2016. (ECF No. 5.) On December 13, 2017, the Court screened

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Plaintiff’s complaint and granted him leave to amend. (ECF No. 17.) Plaintiff’s first amended

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complaint, filed on January 16, 2018, currently before the Court for screening.

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Pursuant to the issuance of the instant screening order, Plaintiff’s motion to have case
heard, (ECF No. 16), is denied as moot.

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I.

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

Screening Requirement and Standard

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous

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or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b);

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1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken

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as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,

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Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S.

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Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted

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unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is currently incarcerated at Pelican Bay State Prison in Crescent City, California.

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The events in the amended complaint appear to have occurred while Plaintiff was incarcerated at

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Corcoran State Prison, in Corcoran, California. Plaintiff names the following defendants:

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(1) CDC Director Scott Kernan; (2) Appeals Coordinator D. Goree, Jr.; (3) Appeals Coordinator

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M. Oliveria; (4) Appeals Coordinator K. Cribbs; and (5) Chief Appeals Officer M. Voong.

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Plaintiff alleges that Defendants Goree, Oliveria, and Cribbs have repeatedly interfered

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with his right to appeal violation imposed on him by withholding, rejecting and cancelling various

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appeals. These defendants cite to Title 15 § 3084.1(f) regarding the submission of one (1) appeal

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every fourteen (14) days. Even when Plaintiff submits appeals fourteen days after their initial
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filing, the appeals coordinators continuously prevented them from being processed.
On September 8, 2016, Plaintiff received a CDC 128 from Defendant Goree, threatening

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to put him on appeal restriction and keeping all of his appeals so they cannot be heard and a

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campaign of harassment, retaliation and conspiracy to commit assault/murder of Plaintiff could be

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carried out. Plaintiff asserts that keeping his appeals violated his First, Eighth and Fourteenth

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Amendment rights, making the appeal system unavailable and allowing prison officials to

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continue to harass, threaten and file false disciplinary reports. For instance, Plaintiff alleges that

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he received a fabricated Rules Violation Report (“RVR”) from Correctional Counselor D.

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Patterson, which was issued using an obsolete memorandum that had been revised. To prevent

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the appeal on this RVR, the appeals coordinators kept the appeal to cover up the violations in the

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fabricated RVR.

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On September 21, 2016, Defendant Goree and Ms. Doe, who refused to identify herself,

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issued to Plaintiff a memo dated September 20, 2016, from the third level of appeals Chief

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Officer M. Voong. This memo put Plaintiff on appeal restriction for one (1) year.

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On September 21, 2016, Plaintiff received a CDC 695 rejection form dated September 16,

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2016, stating that the appeals coordinators were keeping his appeal #5-16-04587, which Plaintiff

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believes to be his appeal regarding the false RVR.

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Plaintiff contends that his First Amendment rights were violated because defendants

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prevented him from exhausting his appeals by withholding, rejecting and cancelling those

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appeals. He seeks the following relief:

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1. Declaratory statement that CDC and its officers and Title 15 violated Plaintiff’s First,
Eighth, and Fourteenth Amendment rights;
2. Declaratory statement that CDC Title 15, § 3084.1(f) violates Plaintiff’s First
Amendment right to appeal violations as they occur;
3. An injunction ordering Defendant Kernan to remove the entirety of Title 15,
§ 3084.1(f) and § 3084.4 from Title 15;

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4. An injunction ordering CDC officials to process and respond to Plaintiff’s appeals;

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5. The costs of this suit;
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6. Reasonable attorney fees; and

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7. For any other relief the Court deems necessary and appropriate.

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III.

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Although Plaintiff references the First, Eighth, and Fourteenth Amendments, his amended

Discussion

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complaint is predicated upon the processing and cancellation of his inmate appeals. Plaintiff

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specifically challenges the CDCR regulation that limits inmates to filing “one appeal every 14

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calendar days unless the appeal is accepted as an emergency appeal.” Cal. Code Regs., tit. 15

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§ 3084.1(f). Plaintiff claims that the regulation violates his First Amendment right to appeal any

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violations as they occur, and allows officials to continue to harass, threaten, and file disciplinary

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reports.
As Plaintiff previously was advised, he cannot pursue any claims against prison staff

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based solely on the processing and review of his inmate appeals. Plaintiff does not have a

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constitutionally protected right to have his 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.19 88). The prison

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grievance procedure does not confer any substantive rights upon inmates and actions in reviewing

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appeals cannot serve as a basis for liability under section 1983. Buckley v. Barlow, 997 F.2d 494,

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495 (8th Cir.1993); see also Wright v. Shannon, No. 1:05-cv-01485-LJO-YNP PC, 2010 WL

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445203, at *5 (E.D. Cal. Feb. 2, 2010) (plaintiff's allegations that prison officials denied or

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ignored his inmate appeals failed to state a cognizable claim under the First Amendment). Denial

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or refusal to process a prison grievance is not a constitutional violation. Rushdan v. Gear, No.

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1:16-cv-01017-BAM (PC), 2018 WL 2229259, at *6 (E.D. Cal. May 16, 2018) Accordingly,

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Plaintiff fails to state a cognizable claim arising out of the screening or processing of his

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grievances.

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Insofar as Plaintiff alleges that the improper processing or holding of his grievances

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prevented him from accessing the courts, his allegations are not sufficient to state a claim.

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Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518 U.S.

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343, 346 (1996). However, in order to state a claim for the denial of court access, a prisoner must

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establish that he suffered an actual injury. Id. at 349. “[A]ctual injury [is] actual prejudice with
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respect to contemplated or existing litigation, such as the ability to meet a filing deadline or to

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present a claim.” Id. at 348. Here, Plaintiff has not adequately alleged that he suffered any actual

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prejudice with respect to contemplated or existing litigation. There is nothing in Plaintiff’s

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amended complaint to suggest that he could not pursue civil rights claims regarding his

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conditions of confinement and related disciplinary proceedings despite the inability to have his

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grievances processed. Although prisoners are required to exhaust their administrative remedies

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prior to bringing suit pursuant to 42 U.S.C. § 1997e(a), such exhaustion may be excused where

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administrative procedures were effectively unavailable, prison officials obstructed attempts to

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exhaust, or the plaintiff was prevented from exhausting because procedures for processing

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grievances were not followed. See Sapp v. Kimbrell, 623 F.3d 813, 822-24 (9th Cir. 2010).

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IV.

Conclusion and Order

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Plaintiff’s amended complaint fails to state a cognizable claim for relief under section

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1983. The deficiencies in his complaint cannot be cured by amendment and thus further leave to

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amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Accordingly, IT

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IS HEREBY RECOMMENDED that this action be dismissed for Plaintiff’s failure to state a

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claim upon which relief may be granted.

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These Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after being served with these Findings and Recommendation, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendation.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of the “right to challenge the magistrate’s factual

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findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.

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Dated:

/s/ Barbara

July 19, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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