Miller v. Serda et al

Filing 8

ORDER Dismissing First Amended Complaint with Prejudice; ORDER Directing Clerk's Office to Close Case, signed by Magistrate Judge Jennifer L. Thurston on 7/24/17. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NORRIS DAJON MILLER,

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Plaintiff,

Case No. 1:17-cv-00692-JLT (PC)
ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH PREJUDICE

v.
(Doc. 17)

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SERDA, et al.,

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Defendants.

ORDER DIRECTING CLERK’S OFFICE TO
CLOSE CASE

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Plaintiff alleges that Health Care Appeals Office staff, S. Serda, and Deputy Director J.
Lewis violated his rights in their handling and processing of a health care appeal in which he
sought a second x-ray of his ribs and exam by an outside physician. These allegations are not
cognizable under 42 U.S.C. § 1983 as a violation of Plaintiff’s federal rights. Thus, the action is
DISMISSED with prejudice.
A.

Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C.

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§ 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three basis, a strike is imposed

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per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed

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as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has

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not alleged imminent danger of serious physical injury does not qualify to proceed in forma

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pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015).

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B.

Summary of Allegations

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Plaintiff alleges that on August 31, 2016, he went to get an x-ray of his right ribcage.

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Afterward, the physician did not show him the x-ray and did not respond when Plaintiff asked if

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any of his ribs were broken.1 On September 11, 2016, Plaintiff submitted a health care appeal

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indicating that he believed he had two broken ribs and loss of memory. Plaintiff was interviewed

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about his health care appeal by non-defendant Dr. Beregovskaya who told Plaintiff that he did not

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have any broken ribs or punctured lung. Plaintiff stated that he knew his rib-cage was broken

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because it hurt real bad and he was in a lot of pain and unable to sleep at night. The first level

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review issued on October 18, 2016 and was partially granted on another issue. On October 24,

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2016, Plaintiff submitted it for second level review which was rejected by S. Serda on October

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26, 2016 who indicated that Plaintiff could request a second x-ray on another health care appeal.

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Plaintiff did, but S. Serda denied it at the first level indicating that it was duplicative of Plaintiff’s

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first health care appeal, and advising that Plaintiff could submit his first health care appeal for

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second level review -- which she had already rejected. Plaintiff thereafter attempted to pursue his

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first health care appeal to the third level, but it was rejected on the basis that Plaintiff attempted to

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bypass the second level, but Plaintiff had not -- S. Serda rejected his first health care appeal at the

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second level on October 26, 2016. Plaintiff wrote to the “Inmate Correspondence Appeals

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Branch” who responded that Plaintiff could return his first health care appeal to the second level

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and it “would be accepted for continuous processing,” but Plaintiff was transferred to another

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facility before he could do so.
Though Plaintiff’s frustration with this situation is apparent and understandable, as

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Prior to obtaining this treatment, Plaintiff was involved in an altercation with prison staff that is not the subject of
this action.

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discussed below, it does not suffice to state a cognizable claim for violation of Plaintiff’s civil

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rights under 42 U.S.C. § 1983.

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C.

Inmate Appeals

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“[A prison] grievance procedure is a procedural right only, it does not confer any

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substantive right upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing

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Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d

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850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to a

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specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of

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grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640

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(9th Cir. 1988). “Hence, it does not give rise to a protected liberty interest requiring the

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procedural protections envisioned by the Fourteenth Amendment.” Azeez v. DeRobertis, 568 F.

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Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

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Actions in reviewing prisoner’s administrative appeal cannot serve as the basis for

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liability under a ' 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who knows

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about a violation of the Constitution, and fails to cure it, has violated the Constitution himself is

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not correct. “Only persons who cause or participate in the violations are responsible. Ruling

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against a prisoner on an administrative complaint does not cause or contribute to the violation. A

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guard who stands and watches while another guard beats a prisoner violates the Constitution; a

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guard who rejects an administrative complaint about a completed act of misconduct does not.”

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George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) citing Greeno v. Daley, 414 F.3d 645,

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656-57 (7th Cir.2005); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance v. Peters,

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97 F.3d 987, 992-93 (7th Cir.1996).

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Because he has neither a liberty interest nor a substantive right in inmate appeals, he is

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unable to state a constitutional violation against S. Serda and J. Lewis for their processing or

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handling of his appeals. Further, “[o]nce a [non-medical] prison grievance examiner becomes

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aware of potential mistreatment, the Eighth Amendment does not require him or her to do more

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than ‘review [the prisoner’s] complaints and verif[y] with the medical officials that [the prisoner]

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was receiving treatment.’ ” Greeno, 414 F.3d at 656 citing Spruill v. Gillis, 372 F.3d 218, 236
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(3rd Cir. 2004) (non-physician defendants cannot “be considered deliberately indifferent simply

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because they failed to respond directly to the medical complaints of a prisoner who was already

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being treated by the prison doctor” and if “a prisoner is under the care of medical experts . . . a

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non-medical prison official will generally be justified in believing that the prisoner is in capable

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hands.”) This Court concurs with the analysis in Greeno and Spruill. Thus, S. Serda and J.

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Lewis, who are non-medical prison personnel, cannot be held liable for their involvement in

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processing and/or ruling on inmate appeals for medical issues where, as here, the inmate is under

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the care of a physician for the issues raised.

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ORDER
The Complaint does not state a cognizable claim against either Defendant for their

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involvement in the processing and procedural rejection of Plaintiff’s health care appeals. Given

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that this is not a basis for a cognizable claim, Plaintiff need not be granted leave to amend as the

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defects in his pleading are not capable of being cured through amendment. Akhtar v. Mesa, 698

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F.3d 1202, 1212-13 (9th Cir. 2012).

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Accordingly, the Court ORDERS that the Complaint is DISMISSED with prejudice and
the Clerk of the Court is directed to close the action.

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IT IS SO ORDERED.
Dated:

July 24, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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