“prisoner's right to petition the government for 18 redress ... is not compromised by the prison’s refusal to entertain his grievance”
How later courts described this case
- “prisoner's right to petition the government for 18 redress ... is not compromised by the prison’s refusal to entertain his grievance”
- holding party opposing summary judgment 6 must come forward with evidence showing triable issues of material fact on every essential 7 element of his claim
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
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CHRISTOPHER N. WASHINGTON,
11 Case No. 21-cv-08126 BLF (PR)
Plaintiff,
12 ORDER OF PARTIAL DISMISSAL
AND OF SERVICE; DIRECTING
13 v. DEFENDANT TO FILE
DISPOSITIVE MOTION OR
14 NOTICE REGARDING SUCH
NURSE MAGADO, et al., MOTION; INSTRUCTIONS TO
15 CLERK
Defendants.
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18 Plaintiff, a state prisoner currently confined at Mule Creek State Prison, filed the
19 instant pro se civil rights action pursuant to 42 U.S.C. § 1983 based on events that
20 occurred at Salinas Valley State Prison (“SVSP”). Dkt. No. 1. The Court dismissed the
21 complaint with leave to amend as it was mostly illegible and difficult to understand. Dkt.
22 No. 7. Plaintiff filed an amended complaint. Dkt. No. 8.
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24 DISCUSSION
25 A. Standard of Review
26 A federal court must conduct a preliminary screening in any case in which a
27 prisoner seeks redress from a governmental entity or officer or employee of a
1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim
2 upon which relief may be granted or seek monetary relief from a defendant who is immune
3 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally
4 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
6 elements: (1) that a right secured by the Constitution or laws of the United States was
7 violated, and (2) that the alleged violation was committed by a person acting under the
8 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
9 B. Plaintiff’s Claims
10 Plaintiff names the following as Defendants in the amended complaint: SVSP
11 Warden, SVSP Nurse Magado, C. R. Padilla (Chief Appeals Coordinator at SVSP), and S.
12 Gates (Health Care Chief Executive Officer at Headquarters). Dkt. No. 8 at 5. Plaintiff
13 claims Nurse Magado was deliberately indifferent to his serious medical needs and denied
14 him adequate medical care sometime in February and March 2020, in response to his
15 Covid-19 related symptoms. Id. at 6-7, 10-11. Plaintiff also claims his right to due
16 process was violated by Defendants Padilla and Gates when they denied his grievance
17 appeals on the matter. Id. at 11. Plaintiff claims the SVSP Warden is aware of the
18 problem, citing to a newspaper article regarding a Covid-19 outbreak at SVSP and a letter
19 regarding an appeal matter in state court. Id.; Exs. E, F, Dkt. No. 8 at 25, 27. Plaintiff
20 seeks declaratory and injunctive relief as well as compensatory and punitive damages. Id.
21 at 12.
22 Liberally construed, Plaintiff states a cognizable claim for deliberate indifference to
23 serious medical needs against Nurse Magado. See Estelle v. Gamble, 429 U.S. 97, 104
24 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on
25 other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997)
26 (en banc). However, the amended complaint is deficient with respect to the other claims
1 California Code of Regulations, title 15 sections 1073 and 3084 grant prisoners in
2 the county jails and state prisons a purely procedural right: the right to have a prison
3 appeal. The regulations simply require the establishment of a procedural structure for
4 reviewing prisoner complaints and set forth no substantive standards; instead, they provide
5 for flexible appeal time limits, see Cal. Code Regs. tit. 15, § 3084.6, and, at most, that “no
6 reprisal shall be taken against an inmate or parolee for filing an appeal,” id. § 3084.1(d). A
7 provision that merely provides procedural requirements, even if mandatory, cannot form
8 the basis of a constitutionally cognizable liberty interest. See Smith v. Noonan, 992 F.2d
9 987, 989 (9th Cir. 1993); see also Antonelli, 81 F.3d at 1430 (prison grievance procedure is
10 procedural right that does not give rise to protected liberty interest requiring procedural
11 protections of Due Process Clause). Accordingly, Plaintiff’s dissatisfaction with
12 Defendants Padilla and Gates’s responses to his health care grievance does not state a
13 cognizable due process claim. The fact that they responded at all means Plaintiff was
14 afforded all the procedural rights afforded him under California law. Furthermore,
15 although there certainly is a right to petition the government for redress of grievances (a
16 First Amendment right), there is no right to a response or any particular action. See Flick
17 v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (“prisoner's right to petition the government for
18 redress ... is not compromised by the prison’s refusal to entertain his grievance”).
19 Accordingly, Plaintiff fails to state a due process claim against Defendants Padilla and
20 Gates.
21 Nor does Plaintiff state a cognizable claim against the Warden of SVSP because
22 there is no allegation that the Warden was personally aware of Plaintiff’s particular
23 circumstances or that he was directly involved in his medical care. In the Order of
24 Dismissal with Leave to Amend, the Court advised Plaintiff that liability may be imposed
25 on an individual defendant under § 1983 only if Plaintiff can show that the defendant
26 proximately caused the deprivation of a federally protected right. Dkt. No. 7 at 3, citing
1 the Warden. Accordingly, this Defendant must be dismissed as there is no cognizable
2 claims against him.
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4 CONCLUSION
5 For the foregoing reasons, the Court orders as follows:
6 1. The following defendants shall be terminated from this action: SVSP
7 Warden, G. R. Padilla, and S. Gates.
8 2. The following defendant shall be served at SVSP:
9 a. Nurse Magado
10 Service on the listed defendant(s) shall proceed under the California Department of
11 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from
12 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve
13 on CDCR via email the following documents: the operative complaint and any attachments
14 thereto, Dkt. No. 8, this order of service, and a CDCR Report of E-Service Waiver form.
15 The clerk also shall serve a copy of this order on the plaintiff.
16 No later than 40 days after service of this order via email on CDCR, CDCR shall
17 provide the court a completed CDCR Report of E-Service Waiver advising the court which
18 defendant(s) listed in this order will be waiving service of process without the need for
19 service by the United States Marshal Service (USMS) and which defendant(s) decline to
20 waive service or could not be reached. CDCR also shall provide a copy of the CDCR
21 Report of E-Service Waiver to the California Attorney General’s Office which, within 21
22 days, shall file with the court a waiver of service of process for the defendant(s) who are
23 waiving service.
24 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for
25 each defendant who has not waived service according to the CDCR Report of E-Service
26 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205
1 each defendant who has not waived service. The clerk also shall provide to the USMS a
2 copy of the CDCR Report of E-Service Waiver.
3 3. No later than thirty-five (35) days from the date the CDCR Report of E-
4 Service Waiver is filed, Defendant shall file an opposition to Plaintiff’s motion for
5 preliminary injunction and supplemental thereto. Dkt. Nos. 6, 9. Plaintiff’s reply shall
6 be filed no later than fourteen (14) days after Defendant’s opposition is filed.
7 4. In the same time in which to file an opposition to Plaintiff’s preliminary
8 injunction motion, Defendant may file a motion to dismiss under the Federal Rules of Civil
9 Procedure.
10 a. Plaintiff’s opposition to Defendant’s motion to dismiss shall be filed
11 with the Court and served on Defendants no later than twenty-eight (28) days from the
12 date Defendants’ motion is filed.
13 b. Defendants shall file a reply brief no later than fourteen (14) days
14 after Plaintiff’s opposition is filed.
15 5. If no motion to dismiss is filed, no later than ninety-one (91) days from the
16 date this order is filed, Defendants shall file a motion for summary judgment with respect
17 to the claims in the complaint found to be cognizable above.
18 a. Any motion for summary judgment shall be supported by adequate
19 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of
20 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor
21 qualified immunity found, if material facts are in dispute. If any Defendant is of the
22 opinion that this case cannot be resolved by summary judgment, he shall so inform the
23 Court prior to the date the summary judgment motion is due.
24 b. In the event Defendants file a motion for summary judgment, the
25 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate
26 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See
1 6. Plaintiff’s opposition to the dispositive motion shall be filed with the Court
2 and served on Defendants no later than twenty-eight (28) days from the date Defendants’
3 motion is filed.
4 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and
5 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment
6 must come forward with evidence showing triable issues of material fact on every essential
7 element of his claim). Plaintiff is cautioned that failure to file an opposition to
8 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to
9 the granting of the motion, and granting of judgment against Plaintiff without a trial. See
10 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18
11 F.3d 651, 653 (9th Cir. 1994).
12 7. Defendants shall file a reply brief no later than fourteen (14) days after
13 Plaintiff’s opposition is filed.
14 8. The motion shall be deemed submitted as of the date the reply brief is due.
15 No hearing will be held on the motion unless the Court so orders at a later date.
16 9. All communications by the Plaintiff with the Court must be served on
17 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true
18 copy of the document to Defendants or Defendants’ counsel.
19 10. Discovery may be taken in accordance with the Federal Rules of Civil
20 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local
21 Rule 16-1 is required before the parties may conduct discovery.
22 11. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the
23 court informed of any change of address and must comply with the court’s orders in a
24 timely fashion. Failure to do so may result in the dismissal of this action for failure to
25 prosecute pursuant to Federal Rule of Civil Procedure 41(b).
26 12. Extensions of time must be filed no later than the deadline sought to be
1 IT IS SO ORDERED.
2 || Dated: August 22, 2022 fete Lown bconty)
BETH LABSON FREEMAN
3 United States District Judge
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Order of Partial Dismissal and of Service
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