(PC) Gosztyla v. Jenkins

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA RICHARD GOSZTYLA, No. 2:22-cv-01706-EFB (PC) 12 Plaintiff, 13 v. ORDER A. JENKINS, et al., 15 Defendants.

17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. In addition to filing a complaint, he has filed an application for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

20 Application to Proceed In Forma Pauperis 21 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

25 Screening Standards 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b).

4 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

9 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 11 U.S. 662, 679 (2009).

12 To avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678.

17 Furthermore, a claim upon which the court can grant relief must have facial plausibility.

18 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

24 Screening Order 25 Liberally construed, the complaint states a potentially cognizable claim that defendant A.

26 Jenkins improperly searched plaintiff in violation of the Fourth and Eighth Amendments and also retaliated against plaintiff in violation of the First Amendment. See ECF No. 1 at 5-6 (describing ///// searches between November 1, 2019 and January 1, 2020); id. at 10 (alleging that Jenkins threatened to beat plaintiff for filing an inmate grievance against him).

3 Plaintiff also alleges that Jenkins falsified a rules violation report against him. Id. at 7.

4 Plaintiff alleges that he responded to the falsified rules violation report by filing an inmate grievance against Jenkins. Id. Plaintiff alleges his due process rights were violated when he was not allowed to present evidence or witnesses in support of his grievance. Id. at 7-8. These allegations cannot survive screening because any failure to properly process or respond to an administrative appeal does not violate due process, as there are no constitutional requirements regarding how a grievance system is operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). If plaintiff means to allege that he was denied the right to present evidence or witnesses during the disciplinary proceedings related the rules violation report, he may say so in an amended complaint. Should he choose to do so, plaintiff must specifically allege (1) who deprived him of adequate procedural protections at the disciplinary hearing and (2) that he was deprived of a constitutionally protected liberty or property interest. See Kildare v. Saenz, 325 15 F.3d 1078, 1085 (9th Cir. 2003).

16 The complaint lists six additional defendants, including Coker, Costa, Cantu, Holmes, 17 Covello, and Rojas but fails to state a claim against any of them. To the extent plaintiff seeks to impose liability on any of these defendants because of their involvement in the administrative appeals process, plaintiff fails to state a claim. As noted, there are no constitutional requirements regarding how a grievance system is operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner’s claimed loss of a liberty interest in the processing of his appeals does not violate due process because prisoners lack a separate constitutional entitlement to a specific prison grievance system). Thus, plaintiff may not impose liability on a defendant simply because he played a role in processing plaintiff’s appeals or because the appeals process was otherwise rendered unfair. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (an administrative “grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment.” (internal quotations omitted)).

1 Plaintiff may either proceed with his First, Fourth, and Eighth Amendment claims against defendant Jenkins only or he may amend his complaint to attempt to assert additional claims against the other named defendants. He may not, however, change the nature of this suit by alleging new, unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Moreover, plaintiff is not obligated to amend his complaint.

6 Leave to Amend 7 Plaintiff may file an amended complaint to attempt to cure the deficiencies noted above.

8 Any amended complaint must identify as a defendant only persons who personally participated in a substantial way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 10 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another’s act or omits to perform an act he is legally required to do that causes the alleged deprivation).

13 Any amended complaint must be written or typed so that it so that it is complete in itself without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 17 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)).

20 The court cautions plaintiff that failure to comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

22 See Local Rule 110.

23 Conclusion 24 Accordingly, it is ORDERED that: 25 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is GRANTED.

26 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 27 in accordance with the notice to the California Department of Corrections and 28 Rehabilitation filed concurrently herewith.

1 3. Plaintiff's complaint alleges, for screening purposes, a potentially cognizable 2 claim that defendant Jenkins improperly searched plaintiff in violation of the 3 Fourth and Eighth Amendments and also retaliated against plaintiff in violation of 4 the First Amendment.

5 4. All other claims (including those against defendants Coker, Costa, Cantu, Holmes, 6 Covello, and Rojas) are dismissed with leave to amend within 30 days of service 7 of this order. Plaintiff is not obligated to amend his complaint.

8 5. Within thirty days plaintiff shall return the notice below advising the court whether 9 he elects to proceed with the cognizable claim or file an amended complaint. If 10 the former option is selected and retumed, the court will enter an order directing 11 service at that time.

12 6. Failure to comply with any part of this this order may result in dismissal of this 13 action.

15 | Dated: November 28, 2022. □□ PDEA EDMUND F. BRENNAN 16 UNITED STATES MAGISTRATE JUDGE 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA RICHARD GOSZTYLA, No. 2:22-cv-01706-EFB (PC) 10 Plaintiff, 11 v. NOTICE A. JENKINS, et al., 13 Defendants.

15 In accordance with the court’s Screening Order, plaintiff hereby elects to: 17 (1) ______ proceed only with the potentially cognizable claims that defendant Jenkins improperly searched plaintiff in violation of the Fourth and Eighth Amendments and also retaliated against plaintiff in violation of the First Amendment.

21 OR 23 (2) ______ delay serving any defendant and file an amended complaint.

25 _________________________________ 26 Plaintiff Dated: