Valdez v. Cate et al

Filing 27

ORDER signed by Magistrate Judge Craig M. Kellison on 9/30/2013 GRANTING 16 Motion for service of the complaint. Foston, Stark, and Mayhew are DISMISSED from this action. Service is APPROPRIATE for Defendants: Cate, Virga, Johnson-Dovey, Villaseno r, Ventimiglia, Beeson, Jakabosky, Wallace, Cannedy, Finnegan, May, O'Brian, Jubb, Guman, Rothchild, and Kokkonen. The Clerk shall send 1 USM-285 forms for each Defendant, summons, instruction sheet, and a copy of the complaint. Within 30 days of the date of service of this order, plaintiff shall complete the Notice of Submission.. (Donati, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RUBEN VALDEZ,

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No. 2:12-cv-1352-CMK-P

Plaintiff,

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vs.

ORDER

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MATTHEW CATE, et al.,

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Defendant.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. §

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636(c) and no other party has been served or appeared in the action. Pending before the court is

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plaintiff’s complaint (Doc. 1) and motion requesting the court to authorize service thereof (Doc.

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16).

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,
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the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement

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of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means

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that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172,

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1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.
I. PLAINTIFF’S ALLEGATIONS
Plaintiff names nineteen individual defendants, alleging each has been involved in

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some fashion in identifying him as a gang member, validating him as a gang member, and

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deciding to place him and retain him in administrative segregation based on that validation. He

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claims he has been denied due process throughout the validation and hearing process. He also

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alleges the policies, practices and procedures violate his due process rights.

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II. DISCUSSION
The Due Process Clause protects prisoners from being deprived of life, liberty, or

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property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to

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state a claim of deprivation of due process, a plaintiff must allege the existence of a liberty or

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property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672

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(1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Due process protects against the

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deprivation of property where there is a legitimate claim of entitlement to the property. See Bd.

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of Regents, 408 U.S. at 577. Protected property interests are created, and their dimensions are

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defined, by existing rules that stem from an independent source – such as state law – and which

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secure certain benefits and support claims of entitlement to those benefits. See id.
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Liberty interests can arise both from the Constitution and from state law. See

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Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976);

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Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining whether the Constitution

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itself protects a liberty interest, the court should consider whether the practice in question “. . . is

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within the normal limits or range of custody which the conviction has authorized the State to

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impose.” Wolff, 418 U.S. at 557-58; Smith, 994 F.2d at 1405. Applying this standard, the

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Supreme Court has concluded that the Constitution itself provides no liberty interest in good-

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time credits, see Wolff, 418 U.S. at 557; in remaining in the general population, see Sandin v.

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Conner, 515 U.S. 472, 485-86 (1995); in not losing privileges, see Baxter v. Palmigiano, 425

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U.S. 308, 323 (1976); in staying at a particular institution, see Meachum, 427 U.S. at 225-27; or

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in remaining in a prison in a particular state, see Olim v. Wakinekona, 461 U.S. 238, 245-47

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(1983).

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In determining whether state law confers a liberty interest, the Supreme Court has

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adopted an approach in which the existence of a liberty interest is determined by focusing on the

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nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In doing so, the

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Court has held that state law creates a liberty interest deserving of protection only where the

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deprivation in question: (1) restrains the inmate’s freedom in a manner not expected from the

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sentence; and (2) “imposes atypical and significant hardship on the inmate in relation to the

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ordinary incidents of prison life.” Id. at 483-84. Prisoners in California have a liberty interest in

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the procedures used in prison disciplinary hearings where a successful claim would not

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necessarily shorten the prisoner’s sentence. See Ramirez v. Galaza, 334 F.3d 850, 853, 859 (9th

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Cir. 2003) (concluding that a due process challenge to a prison disciplinary hearing which did not

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result in the loss of good-time credits was cognizable under § 1983); see also Wilkinson v.

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Dotson, 544 U.S. 74, 82 (2005) (concluding that claims which did not seek earlier or immediate

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release from prison were cognizable under § 1983).

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Here, plaintiff alleges most of the defendants were personally involved in the gang

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validation process and decision to place him in administrative segregation. However, he claims

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three individual defendants, Foston, Stark and Mayhew, were only involved in the review of his

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inmate grievance appeal, and were not involved in the actual determinations.

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Prisoners have no stand-alone due process rights related to the administrative

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grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v.

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Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no liberty interest entitling

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inmates to a specific grievance process). Because there is no right to any particular grievance

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process, it is impossible for due process to have been violated by ignoring or failing to properly

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process grievances. Numerous district courts in this circuit have reached the same conclusion.

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See Smith v. Calderon, 1999 WL 1051947 (N.D. Cal 1999) (finding that failure to properly

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process grievances did not violate any constitutional right); Cage v. Cambra, 1996 WL 506863

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(N.D. Cal. 1996) (concluding that prison officials’ failure to properly process and address

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grievances does not support constitutional claim); James v. U.S. Marshal’s Service, 1995 WL

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29580 (N.D. Cal. 1995) (dismissing complaint without leave to amend because failure to process

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a grievance did not implicate a protected liberty interest); Murray v. Marshall, 1994 WL 245967

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(N.D. Cal. 1994) (concluding that prisoner’s claim that grievance process failed to function

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properly failed to state a claim under § 1983). Prisoners do, however, retain a First Amendment

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right to petition the government through the prison grievance process. See Bradley v. Hall, 64

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F.3d 1276, 1279 (9th Cir. 1995). Therefore, interference with the grievance process may, in

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certain circumstances, implicate the First Amendment.

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There are no allegations that plaintiff was unable to petition his grievance.

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Rather, he only claims defendants Foston, Stark and Mayhew denied his grievances. This is

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insufficient to state claim, and defendants Foston, Stark and Mayhew will be dismissed from this

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action.

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III. CONCLUSION

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The complaint appears to state a cognizable claim for relief pursuant to 42 U.S.C.

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§ 1983 and 28 U.S.C. § 1915A(b) against defendants Cate, Virga, Johnson-Dovey, Villasenor,

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Ventimiglia, Beeson, Jakabosky, Wallace, Cannedy, Finnegan, May, O’Brian, Jubb, Guzman,

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Rothchild and Kokkonen. If the allegations are proven, plaintiff has a reasonable opportunity to

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prevail on the merits of this action. The court, therefore, finds that service is appropriate and will

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direct service by the U.S. Marshal without pre-payment of costs. Plaintiff is informed, however,

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that this action cannot proceed further until plaintiff complies with this order. Plaintiff is warned

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that failure to comply with this order may result in dismissal of the action. See Local Rule 110.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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extent consistent with this order;

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2.

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Plaintiff’s motion for service of the complaint (Doc. 16) is granted to the

Plaintiff fails to state a cognizable claim against defendants Foston, Stark

and Mayhew, , who are dismissed from this action;

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3.

The court authorizes service on the following defendant(s): CATE,

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VIRGA, JOHNSON-DOVEY, VILLASENOR, VENTIMIGLIA, BEESON, JAKABOSKY,

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WALLACE, CANNEDY, FINNEGAN, MAY, O’BRIAN, JUBB, GUZMAN, ROTHCHILD and

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KOKKONEN;

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The Clerk of the Court shall send plaintiff one USM-285 form for each

defendant identified above, one summons, an instruction sheet, and a copy of the complaint; and

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Within 30 days of the date of service of this order, plaintiff shall complete

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the attached Notice of Submission of Documents and submit the following documents to the

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court:

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a.

The completed Notice of Submission of Documents;

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b.

One completed summons;

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c.

Sixteen completed USM-285 form(s); and

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d.

Seventeen copies of the endorsed complaint.

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DATED: September 30, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RUBEN VALDEZ,

No. 2:12-cv-1352-CMK-P

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Plaintiff,
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vs.
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MATTHEW CATE, et al.,
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Defendant.
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/
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NOTICE OF SUBMISSION OF DOCUMENTS
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Plaintiff hereby submits the following documents in compliance with the court's
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order:
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completed summons form;

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completed USM-285 form(s); and
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copies of the complaint.
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DATED: __________________

____________________________________

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Plaintiff
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