Opinion
No. C 05-2921 CRB (PR).
July 21, 2005
ORDER OF DISMISSAL (Doc # 2)
Plaintiff, a state prisoner at the California Correctional Center in Susanville, California ("CCC"), has filed a pro se civil rights complaint under 42 U.S.C. § 1983 seeking injunctive and monetary relief from the City of East Palo Alto Police Department ("EPAPD"), its chief and two officers.
Plaintiff also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.
DISCUSSION
A. Standard of Review
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). Pro se pleadings must be liberally construed.Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff alleges that between November 30, 2004 and May 14, 2005, he "flooded" EPAPD with letters concerning the theft of his cars and identity by career criminal Siliva Briggs. At some point during the month of May 2005, EPAPD Lt. Norris contacted plaintiff by phone at CCC and asked plaintiff to send him certain information in order to file a police report. Plaintiff sent Norris the requested information, but when plaintiff called a few weeks later to check on the progress of his case, Norris refused to take his call.
Plaintiff claims that the defendants' actions/omissions amounted to a violation of his First Amendment right to petition the government and a violation of his due process right to the services of EPAPD. Plaintiff's claims are not cognizable under § 1983.
Although there is a First Amendment right to petition the government for redress of grievances, there is no right to a response or any particular action. See, e.g., Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (prisoner's right to petition the government for redress is not compromised by the prison's refusal to entertain the grievance). Plaintiff exercised his First Amendment right by "flood[ing]" EPAPD with letters regarding his grievance. That EPAPD has not responded in a way plaintiff deems satisfactory does not mean that they violated his First Amendment rights by "chilling" him from future First Amendment activities, as he claims. The complaint itself makes clear that the effect of EPAPD's alleged non-responsiveness has been that plaintiff has filed of a citizen's complaint and a civil rights complaint against the defendants. The defendants' alleged actions/omissions did not chill or silence plaintiff from future First Amendment activities and, more importantly, would not chill or silence a person of ordinary firmness from future First Amendment activities. See Mendocino Envtl. Ctr. v. Mendocino, County, 192 F.3d 1283, 1300 (9th Cir. 1999).
Plaintiff's due process claim is equally without merit. The benefit that a third party may receive from having someone else arrested and prosecuted for a crime generally does not trigger protections under the Due Process Clause. Castle Rock v. Gonzales, No. 04-278, slip op. at 19 (U.S. June 27, 2005). The two exceptions to this rule — the "state-created danger" doctrine and the "special relationship" doctrine — are not at issue here.See Kennedy v. Ridgefield, No. 03-35333, slip op. 7471, 7483 (9th Cir. June 23, 2005) (discussing DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 197 (1989)).
CONCLUSION
For the foregoing reasons, plaintiff's request to proceed in forma pauperis (doc #2) is DENIED and the complaint is DISMISSED under § 1915A(b).
The clerk shall enter judgment in accordance with this order, terminate all pending motions as moot, and close the file. No fee is due.
SO ORDERED.