Sneed v. Faulk

Filing 36

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 06/16/17 vacating 32 FINDINGS AND RECOMMENDATIONS. Also, RECOMMENDING that this action be dismissed. Referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONNIE KAY SNEED,

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No. 2:14-cv-2478 GEB KJN P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

FRED FAULK, Warden,
Defendant.

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Plaintiff is a state prisoner, proceeding without counsel. On December 14, 2016, the

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undersigned recommended that this action be dismissed based on plaintiff’s failure to timely file

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an amended complaint. In response, plaintiff filed a motion for extension of time to file the

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pleading. On December 23, 2016, plaintiff’s request was partially granted; plaintiff was granted

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sixty days to file an amended complaint. On February 27, 2017, plaintiff filed a second amended

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complaint. Therefore, the December 14, 2016 findings and recommendations are vacated, and the

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court now screens plaintiff’s amended pleading.

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In the amended pleading, plaintiff alleges that Mrs. Davis did not allow plaintiff to grieve

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his First Amendment claim through the third level of appeal. In addition to money damages,

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plaintiff seeks a declaratory judgment stating that Davis violated plaintiff’s First Amendment

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right to grieve the government by not allowing him photocopies to substantiate his claim to the

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proper government department. Plaintiff alleges that S.L. Chapman, who was aware of Davis’
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denial, did not allow plaintiff to make “copies of documents needed to show what was done by

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the complaint.” (ECF No. 35 at 2.) In addition to money damages, plaintiff seeks a declaratory

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judgment stating that Chapman denied plaintiff’s grievances.

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First, plaintiff failed to identify the individuals named as defendants in the caption of the

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complaint. Fed. R. Civ. P. 10(a). Although it appears that plaintiff now names Davis and

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Chapman as defendants, plaintiff’s pleading must make clear who he is naming as a defendant in

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the pleading.

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Second, despite multiple opportunities to amend, plaintiff has again failed to state a
cognizable access to the courts claim in violation of the First Amendment. The amended

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pleading does not identify any cognizable injury plaintiff suffered as a result of defendants

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alleged refusal to copy documents. Because actual injury is a jurisdictional requirement that may

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not be waived, an actual injury must be alleged in order to state a claim for relief. Nevada Dept.

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of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011); see, e.g., Jenkins v. McMickens, 618 F.

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Supp. 1472, 1474-75 (S.D. N.Y. 1985) (complaint alleging certain documents pertaining to

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pending trial were confiscated and not returned is too conclusory to support a claim of denial of

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access to court).

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Moreover, plaintiff fails to demonstrate the alleged failure to provide photocopies

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interfered with his access to the courts. Rather, plaintiff claims he needed the photocopies to

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“substantiate his claim to the proper government department.” (ECF No. 35 at 2.) In addition, in

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his appeal HDSP-B-14-01853, plaintiff stated he was exercising his right to file a formal citizen

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complaint, requested documents necessary to advance his civil litigation in his complaint to the

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State Bar of California, and the documents were needed to be sent to the State Bar of California,

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Audit and Review Unit. (ECF No. 35 at 20, 24.) Plaintiff requested to have 765 pages

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photocopied for the State Bar. (Id. at 20, 21, 23, 24.) The exhibits provided by plaintiff

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demonstrate that his underlying complaint to the State Bar was denied, but that plaintiff could

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request the State Bar’s Audit & Review Unit to review the complaint. (Id. at 26.) Any inability

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to file a citizen’s complaint or to file documents with the State Bar does not fall within the

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purview of claims covered by plaintiff’s constitutional right of access to the courts. The right of
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access protects only the right to file direct criminal appeals, habeas petitions, and civil rights

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actions. See Lewis, 518 U.S. at 354-55. Having failed to meet these requirements, any right of

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access claim under the First Amendment must be dismissed.

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Plaintiff was first advised of these requirements in the court’s initial screening order

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issued on April 29, 2015. (ECF No. 23 at 5.) Plaintiff was reminded of the actual injury

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requirement in the November 7, 2016 screening order. (ECF No. 31 at 3.) Plaintiff’s second

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amended complaint makes no reference to an actual injury to court access to file any document in

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a court of law. The exhibits provided with plaintiff’s amended pleading confirm that plaintiff

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sought the photocopies for filing with the State Bar or in connection with his citizen’s complaint,

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which does not constitute an actual injury under Lewis. Thus, it would be futile to again grant

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plaintiff leave to amend his access to the courts claim.

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Third, plaintiff’s allegation that defendant Chapman denied plaintiff’s administrative

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appeal or kept him from filing a third level appeal fail to state a cognizable due process claim.

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Plaintiff cannot state a due process claim based on defendants’ role in the inmate appeal process.

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The Due Process Clause protects plaintiff against the deprivation of liberty without the

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procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209,

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221 (2005). However, plaintiff has no stand-alone due process rights related to the administrative

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grievance process. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855

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F.2d 639, 640 (9th Cir. 1988). A prison official’s denial of a grievance does not itself violate the

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constitution. Evans v. Skolnik, 637 Fed. Appx. 285, 288 (9th Cir. 2015), cert. dism’d, 136 S. Ct.

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2390 (2016). Thus, the denial, rejection, or cancellation of a grievance does not constitute a due

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process violation. See, e.g., Wright v. Shannon, 2010 WL 445203, at *5 (E.D. Cal. Feb. 2, 2010)

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(plaintiff’s allegations that prison officials denied or ignored his inmate appeals failed to state a

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cognizable claim under the First Amendment); Towner v. Knowles, 2009 WL 4281999 at *2

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(E.D. Cal. Nov. 20, 2009) (plaintiff’s allegations that prison officials screened out his inmate

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appeals without any basis failed to indicate a deprivation of federal rights); Williams v. Cate,

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2009 WL 3789597, at *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in

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the vindication of his administrative claims.”). Therefore, plaintiff’s claims that Chapman
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wrongfully denied plaintiff’s administrative appeals fail to state a due process claim and must be

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dismissed.

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IT IS HEREBY ORDERED that the December 14, 2016 findings and recommendations
(ECF No. 32) are vacated; and

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IT IS RECOMMENDED that this action be 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 and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: June 16, 2017

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/snee2478.56

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