Opinion
No. C 03-3372 WHA (PR)
August 27, 2003
JUDGMENT
The court has dismissed this prisoner in forma pauperis compliant. A judgment of dismissal with prejudice is entered as to plaintiffs claim regarding administrative appeals. A judgment of dismissal without prejudice is entered as to his claim involving his continued incarceration. Plaintiff shall take nothing by way of his complaint. IT IS SO ORDERED.
ORDER OF DISMISSAL; DENIAL OF LEAVE TO PROCEED IN FORMA PAUPERIS (Doc 2)
Plaintiff, an inmate at Corcoran State Prison, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis.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). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1), (2).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
1. Administrative appeals
Plaintiff contends that defendants are keeping him "incarcerated with a false abstract." He also complains of the rejection of his administrative appeals, some of which evidently were while he was confined at Salinas Valley State Prison. He asks for damages and an order requiring the warden to release him.
There is no constitutional right to an administrative appeal process.Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Antonelli v. Sheahan. 81 F.3d 1422, 1430 (7th Cir. 1996); Garfield v. Davis, 566 F. Supp. 1069, 1074 (E.D. Pa. 1983); accord Wolff v. McDonnell 418 U.S. 539, 565 (1974) (accepting Nebraska system wherein no provision made for administrative review of disciplinary decisions). In addition, California Code of Regulations, title 15 section 3084, grants state prisoner: only a purely procedural right: the right to have a prison appeal. The regulations simply require the establishment of a procedural structure for reviewing prisoner complaints and set forth no substantive standards; instead, they provide for flexible appeal time limits, Cal. Code Regs. tit. 15, § 3084.6, and, at most, that "no reprisal shall be taken against an inmate or parolee for filing an appeal," id. § 3084. l(d). A provision that merely provides procedure requirements, even if mandatory, cannot form the basis of a constitutionally cognizable liberty interest. Smith v. Noonaru 992 F.2d 987, 989(9th Cir. 1993): see also Antonelli, 81 F.3d at 1430 (prison grievance procedure is procedural right that does not give rise to protected liberty interest requiring procedural protections of Due Process Clause); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (same). Plaintiff therefore had no right to due process protections as to his grievances.
See Cal. Code of Regs. tit. 15 § 3084, et seq..
Therefore, plaintiffs claims arising from rejection of his administrative appeals, the only claims involving Salinas Valley State Prison defendants, will be dismissed. Because there is no way a claim involving rejection of administrative appeals can be amended to state a constitutional claim, the dismissal will be without leave to amend.
2. "False abstract"
Plaintiff contends that he is being held because of a "false abstract" of conviction, and asks that the Court award damages and order his release.
The United States Supreme Court has held that to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. See Heck v. Humphrey, 114 S.Ct. 2364, 2372(1994).
When a state prisoner's section 1983 suit implicates the length of his or her incarceration, the complaint must be dismissed unless the plaintiff can demonstrate that the decision establishing the length of incarceration has already been invalidated. Id. A judgment in favor of the plaintiff on this claim would result in his release; therefore, plaintiff must first succeed in getting his confinement set aside by way of direct appeal, executive order, or state or federal writ of habeas corpus. In the absence of success by one of these other means, this complaint fails to state a cognizable claim for damages under § 1983 and must be dismissed. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (claims barred by Heck may be dismissed sua sponte without prejudice).
To the extent plaintiff seeks the equitable remedy of release, as opposed to damages, his sole remedy is to file a petition for writ of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500 (1973), after he exhausts state judicial remedies, Granberry v. Green 481 U.S. 129, 134(1987). Any such claim is therefore dismissed without prejudice. See Trimble v. City of Santa Rosa. 49 F.3d at 586.
CONCLUSION
Plaintiffs claims involving his administrative appeals are DISMISSED with prejudice. His claim involving the allegedly "false abstract" is DISMISSED without prejudice. Leave to proceed in forma pauperis (doc 2) is DENIED. No fee is due.
"[A] § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." Heck, 114 So. Ct. at 2374 (footnote omitted). Plaintiffs claim for damages thus does not accrue for statute of limitations purposes until he succeeds in getting the confinement set aside by another means.
The clerk shall close the file.
SO ORDERED.