Joseph v. California Prison Industry Authority et al

Filing 9

ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/4/13 ORDERING that Plaintiffs request for leave to proceed in forma pauperis 8 is GRANTED. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiffs motion for appointment of counsel 5 is DENIED. This action is DISMISSED for failure to state a claim upon which relief may be granted. CASE CLOSED.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALONZO JOSEPH,

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No. 2:13-cv-0122 CKD P

Plaintiff,
CALIFORNIA PRISON INDUSTRY
AUTHORITY, et al.,

ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

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proceeding was referred to the undersigned by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has consented to jurisdiction by United States Magistrate Judge.

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I.

In Forma Pauperis
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the

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filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. Plaintiff will be

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obligated to make monthly payments of twenty percent of the preceding month’s income credited

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to his prison trust account. These payments will be forwarded by the appropriate agency to the

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Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing fee
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is paid in full. 28 U.S.C. § 1915(b)(2).
II.

Screening of Plaintiff’s Complaint
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 fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.

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at 1949. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes,

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416 U.S. 232, 236 (1974).

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Here, plaintiff alleges that he suffered a painful rash and burning sensation from using

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soap which was negligently manufactured by Prison Industry Authority (“PIA”) and issued to
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indigent prisoners. (ECF No. 1 at 4-5.) On December 22, 2011, plaintiff was seen by a health

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care provider and was prescribed a cream for the rash. (Id.) The soap plaintiff used was recalled

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by PIA because it contained “too many chemicals.” (Id. at 5.) Petitioner filed an inmate appeal

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regarding the soap and his injuries; the appeal was reviewed at the second level by defendant J.

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Leese, who failed to do his own investigation and denied the appeal citing ingredients from the

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side of the box which were different from those in the soap actually provided to plaintiff. (Id. at

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6.) Warden Lizarraga denied the appeal at the third level, reiterating the same response and

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ignoring the medical documentation that plaintiff suffered a rash and a burn. (Id.)

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It is well settled that negligent conduct does not violate the Eighth Amendment. See, e.g.,

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Estate of Ford v. Ramirez–Palmer, 301 F.3d 1043, 1052 (quoting Farmer v. Brennan, 511 U.S.

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825, 838, 114 S. Ct. 1970, 128 L.Ed.2d 811 (1994) (“negligence, or failure to avoid a significant

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risk that should be perceived but wasn’t, ‘cannot be condemned as the infliction of

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punishment.’”). In addition, the prison grievance procedure itself does not confer any substantive

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rights upon inmates, and, therefore, actions in reviewing and denying inmate appeals cannot serve

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as a basis for liability under section 1983. See Ramirez v. Galaza, 334 F.3d 805, 860 (9th Cir.

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2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also George v. Smith, 507 F.3d

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605-609-10 (7th Cir. 2007) (“Ruling against a prisoner on an administrative complaint does not

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cause or contribute to the violation”); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)

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(prison officials whose only roles involved the denial of the prisoner’s administrative grievances

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cannot be held liable under section 1983).

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For these reasons, the allegations in plaintiff’s complaint fail to state a claim upon which

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relief can be granted against any named defendant. Moreover, it is clear that the deficiencies in

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plaintiff’s complaint cannot be cured by amendment. For these reasons, the action must be

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dismissed for failure to state a claim upon which relief can be granted. See 28 U.S.C. §

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1915(b)(1).

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 8) is GRANTED.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees
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shall be collected and paid in accordance with this court’s order to the Director of the California

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Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff’s motion for appointment of counsel (ECF No. 5.) is DENIED.

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4. This action is dismissed for failure to state a claim upon which relief may be granted.

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Dated: June 4, 2013

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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