Coleman v. Foulk, et al

Filing 18

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/17/2014 ORDERING that service is appropriate for P. Arnwald, M. Hanned, T. Swartz, K Tenya; the Clerk shall send plaintiff forms for service to be complete d and returned within 30 days, along with the Notice of Submission; and the Clerk shall assign a district court judge to this case; and RECOMMENDING that all defendants other than Swartz, Arnwald, Hanned and Tenya be dismissed. Assigned and Referred to Judge Kimberly J. Mueller; Objections due within 14 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAADHI ABDUL COLEMAN,

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No. 2:13-cv-1753 CKD P

Plaintiff,
v.

ORDER AND

FRED FOULK, et al.,

FINDINGS AND RECOMENDATIONS

Defendants.

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Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to

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42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court

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pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. On April 30, 2014, plaintiff’s complaint

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was dismissed with leave to amend. Plaintiff has filed an amended complaint.

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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 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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The court has screened plaintiff’s amended complaint and finds that it states a claim upon

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which relief could be granted under the First Amendment for denial of the right of access to

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courts against defendants Swartz, Arnwald, Hanned and Tenya to the extent plaintiff alleges these

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defendants prevented plaintiff from communicating with courts and attorneys. Good cause

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appearing, the court will order that these defendants be served with process.

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It is also arguable that plaintiff states a claim for at least denial of access to courts against

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defendant Davis as detailed in paragraphs 38-44 of plaintiff’s amended complaint. However,

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these claims have no relation to plaintiff’s claims against defendants Swartz, Arnwald, Hanned

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and Tenya and therefore are not properly joined under Federal Rule of Civil Procedure 20(a)(2).

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If plaintiff wishes to pursue these claims further, he must initiate a separate action.

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In all other respects, plaintiff’s amended complaint fails to state a claim upon which relief

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can be granted. Among other things, plaintiff takes issue with the manner in which a number of

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his grievances have been processed. However, plaintiff does not have a Constitutional right to a

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prisoner grievance process at all, let alone a manner in which grievances must be processed. See

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Ramirez v. Galaza, 334 F.2d 850, 860 (9th Cir. 2003). Plaintiff identifies the California

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Department of Corrections and Rehabilitation (CDCR) as a defendant. However, CDCR is

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immune from suit under the Eleventh Amendment. Brown v. Cal. Dep’t of Corr., 554 F.3d 747,

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752 (9th Cir. 2009). Plaintiff identifies several persons as defendants simply because they are

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supervisory staff or upper management with the California Department of Corrections and

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Rehabilitation (e.g. Wardens Foulk and Barnes). However, there is no liability under 42 U.S.C. §

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1983 unless there is some affirmative link or connection between a defendant’s actions and the

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claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976).

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For these reasons, the court will recommend that all defendants other than defendants
Swartz, Arnwald, Hanned and Tenya be dismissed.

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

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1. Service is appropriate for defendants Swartz, Arnwald, Hanned and Tenya.

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2. The Clerk of the Court shall send plaintiff four USM-285 forms, one summons, an

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instruction sheet and a copy of the amended complaint.

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3. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Submission of Documents and submit the following documents to the 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. One completed USM-285 form for each defendant listed in number 1 above;

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and

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d. Five copies of the endorsed amended complaint.

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4. Plaintiff need not attempt service on defendants and need not request waiver of service.

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Upon receipt of the above-described documents, the court will direct the United States Marshal to

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serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment

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of costs.

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5. The Clerk of the Court assign a district court judge to this case.

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IT IS HEREBY RECOMMENDED that all defendants other than Swartz, Arnwald,

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Hanned and Tenya are dismissed.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: October 17, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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cole1753.1

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAADHI ABDUL COLEMAN,
Plaintiff,

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No. 2:13-cv-1753 CKD P

v.

NOTICE OF SUBMISSION OF
DOCUMENTS

FRED FOULK, et al.,
Defendant.

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Plaintiff hereby submits the following documents in compliance with the court's order
filed _____________________ :
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completed summons form

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completed USM-285 forms

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copies of the ___________________
Complaint

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DATED:

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________________________________

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Plaintiff

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