(PC) Muhammad v. Azevedo ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANSAR EL MUHAMMAD, No. 2:21-cv-0894 KJM DB P 12 Plaintiff, 13 v. ORDER 14 D. AZEVEDO, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. Plaintiff alleges defendants violated his due process rights when they 19 failed to provide him with timely notary services. On screening, this court found plaintiff failed 20 to state any claims cognizable under section 1983. (See Aug. 5, 2021 Order (ECF No. 8).) 21 Plaintiff was given 60 days to file a first amended complaint. When plaintiff did not file a timely 22 amended complaint or otherwise respond to the August 5 order, this court recommended this case 23 be dismissed for plaintiff’s failure to prosecute and failure to comply with court orders. (See 24 Nov. 2, 2021 Findings and Recommendations (ECF No. 11).) 25 In a document filed December 1, 2021, plaintiff states that he is objecting to the findings 26 and recommendations. (ECF No. 12.) However, rather than object to the recommendation that 27 this case be dismissed for failure to prosecute and comply with court orders, plaintiff challenges 28 the screening order. 1 Plaintiff’s December 1 filing makes clear that he wishes to proceed with this action. 2 Accordingly, this court will vacate the November 2 findings and recommendations. To the extent 3 plaintiff seeks reconsideration of the August 5 screening order, that request is untimely. See E.D. 4 Cal. R. 303(b) (motions for reconsideration must be filed within fourteen days of the date of 5 service of the order being challenged). Even if this court considers its merits, plaintiff’s motion 6 for reconsideration would be denied. 7 First, by its terms, section 1983 permits suits only against state actors who violated a 8 person’s federal constitutional rights. It does not permit suits for violations of state law. Galen v. 9 County of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007) (“Section 1983 requires [plaintiff] to 10 demonstrate a violation of federal law, not state law.”). Plaintiff is alleging a violation of 11 California Penal Code § 5007.7, a state law. 12 Second, plaintiff’s claims do not otherwise state a violation of a federal constitutional 13 right. A state law requiring notary services does not create a liberty interest protected by the due 14 process clause. See Robinson v. Conner, No. 2:12-CV-397-TMH, 2012 WL 2358955, at *4 15 (M.D. Ala. May 31, 2012) (State rule re notary services does not give rise to a protected liberty 16 interest.), rep. and reco. adopted, 2012 WL 2359879 (M.D. Ala. June 20, 2012); cf. Williams v. 17 Hill, No. 1:16-cv-0540 LJO EPG PC, 2019 WL 415036, at *5 (E.D. Cal. Feb. 1, 2019) (no liberty 18 interest in specific prison grievance procedure); Hoover v. Crawford, No. 3:06 -cv-0212 HDM 19 VPC, 2007 WL 1381777, at *6 (D. Nev. May 10, 2007) (no liberty interest in visitation). A 20 denial of timely notary services does not amount to a restriction on the “freedom from restraint 21 which...imposes atypical and significant hardship on the inmate in relation to the ordinary 22 incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 481-84 (1995); Myron v. Terhune, 476 23 F.3d 716, 718 (9th Cir. 2007). 24 Finally, plaintiff does not state a claim under the First Amendment. A claim that a 25 defendant violated plaintiff’s First Amendment right of access to the courts is limited to access to 26 nonfrivolous direct criminal appeals, habeas corpus proceedings, and civil rights actions. Lewis 27 v. Casey, 518 U.S. 343 at 353 n.3, 354-55 (1996). Plaintiff alleges the lack of timely notary 28 //// 1 | services affected his participation in a state conservatorship proceeding. Plaintiff fails to show 2 | any basis to challenge this court’s August 5 screening order. 3 For the foregoing reasons, and good cause appearing, IT IS HEREB Y ORDERED as 4 | follows: 5 1. The November 2, 2021 Findings and Recommendations are vacated; 6 2. To the extent plaintiff seeks reconsideration of this court’s August 5, 2021 screening 7 | order, reconsideration is denied. 8 3. If plaintiff wishes to proceed with this action, he must file a first amended complaint, 9 | as described in the August 5 order, within thirty days of the filed date of this order. If he fails to 10 | doso, this court will recommend this action be dismissed for plaintiff’s failure to comply with 11 | court orders. 12 | Dated: January 12, 2022 13 14 15 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 || DLB:9/ DB prisoner inbox/civil rights/S/muha0894.LTA (2) 24 25 26 27 28