(PC) Wynn v. Moss ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMUEL WYNN, No. 2:21-CV-1317-KJM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 B. MOSS, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. 19 On August 25, 2021, the Court issued an order addressing the sufficiency of 20 Plaintiff’s complaint. See ECF No. 10. The Court summarized Plaintiff’s allegations as follows: 21 Plaintiff names the following as defendants: (1) B. Moss, a Correctional Officer at high Desert State Prison (HDSP); (2) L. Mundy, a 22 Correctional Officer at HDSP; and (3) J. Pickett, the Chief Deputy Warden at HDSP. See ECF No. 1, pg. 3. 23 In his first claim, Plaintiff states that, on February 21, 2021, he saw Defendant Moss removed his face mask and “spit a glob of 24 chewing tobacco spit into a garbage can filled with I/M [inmate] lunches.” Id. According to Plaintiff, Defendant Mundy witnessed this and still 25 proceeded to hand out the lunches, giving one of them to Plaintiff. See id. Plaintiff alleges that, despite Plaintiff’s complaints about potential 26 contamination, Defendant Mundy continued passing out the inmate lunches. See id. at 3-4. Plaintiff states that, a short time later, Defendant 27 Mundy “came back and handed me and my cellie two more lunches and said, ‘Don’t shoot the messenger.’” Id. at 4. Plaintiff states that Mundy 28 also stated: “I wouldn’t have did no jackass shit like that.” Id. Plaintiff 1 claims that, as a result of the foregoing, he remains in fear of eating any food at the prison. See id. 2 In his second claim, Plaintiff states he submitted a grievance on March 2, 2021, regarding the conduct of Defendants Moss 3 and Mundy. See id. According to Plaintiff, the grievance was processed by Defendant Pickett who allegedly “elected to disregard the 4 overwhelming amount of evidence against Defendants B. Moss and L. Mundy, and instead chose to attempt to cover-up the malicious acts of 5 abovementioned Defendants by disapproving the Plaintiff’s appeal.” Id. 6 ECF No. 10, pg. 2. 7 The Court determined Plaintiff states a cognizable Eighth Amendment claims 8 against Defendants Moss and Mundy based on Defendants’ alleged disregard for Plaintiff’s health 9 by spitting on food provided to Plaintiff. See id. at 3. The Court also determined that Plaintiff’s 10 allegations against Defendant Pickett fail to state a claim. See id. As to Defendant Pickett, the 11 Court stated: . . .Plaintiff has not, however, stated a cognizable claim 12 against Defendant Pickett based on processing of his inmate grievance. Prisoners have no stand-alone due process rights related to 13 the administrative grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th 14 Cir. 2003) (holding that there is no liberty interest entitling inmates to a specific grievance process). Because there is no right to any particular 15 grievance process, it is impossible for due process to have been violated by ignoring or failing to properly process grievances. Numerous district 16 courts in this circuit have reached the same conclusion. See Smith v. Calderon, 1999 WL 1051947 (N.D. Cal 1999) (finding that failure to 17 properly process grievances did not violate any constitutional right); Cage v. Cambra, 1996 WL 506863 (N.D. Cal. 1996) (concluding that prison 18 officials’ failure to properly process and address grievances does not support constitutional claim); James v. U.S. Marshal’s Service, 1995 WL 19 29580 (N.D. Cal. 1995) (dismissing complaint without leave to amend because failure to process a grievance did not implicate a protected liberty 20 interest); Murray v. Marshall, 1994 WL 245967 (N.D. Cal. 1994) (concluding that prisoner’s claim that grievance process failed to function 21 properly failed to state a claim under § 1983). 22 ECF No. 10, pg. 3. 23 Plaintiff was provided an opportunity to amend and told that, if he chose not to do 24 so within 30 days of the date of the Court’s order, the action would proceed on the original 25 complaint on Plaintiff’s Eighth Amendment claims against Defendants Moss and Mundy only. 26 See id. at 3-4. More than 30 days have elapsed, and Plaintiff has not filed a first amended 27 complaint. The Court now recommends dismissal of Plaintiff’s claim against Defendant Pickett. 28 By separate order, the Court will direct service on Defendants Moss and Mundy. 1 Based on the foregoing, the undersigned recommends that Defendant Pickett be 2 | dismissed for failure to state a claim. 3 These findings and recommendations are submitted to the United States District 4 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 5 | after being served with these findings and recommendations, any party may file written objections 6 | with the Court. Responses to objections shall be filed within 14 days after service of objections. 7 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 8 | Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 | Dated: October 13, 2021 Ssvcqo_ M DENNIS M. COTA 2 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28