1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

TONY MARQUET CAMPBELL,

Plaintiff, No. CIV S-04-1803 GEB DAD P

vs.

G. WOODFORD,

Defendant. FINDINGS & RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

42 U.S.C. § 1983. Before the court is plaintiff’s amended complaint.

On August 18, 2005, the court dismissed plaintiff’s complaint and granted him

leave to file an amended complaint. Plaintiff was advised that if he was merely alleging that 

defendant Woodford had failed to comply with the procedures for processing inmate grievances,

such an allegation would fail to state a cognizable constitutional claim. See Order filed 8-18-05

at 3 (citing Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)). In his amended complaint,

filed on September 12, 2005, plaintiff alleges that defendant Appeals Coordinator JohnsonDovey failed to complete the first level of review in response to an inmate grievance submitted

/////

/////

Case 2:04-cv-01803-GEB-DAD Document 5 Filed 10/03/06 Page 1 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 Plaintiff names only Johnson-Dovey as the sole defendant in his amended complaint.

1

2

by plaintiff within fifteen days. Plaintiff also appears to possibly allege that he was prevented 1

from proceeding with a lawsuit because he could not exhaust his administrative remedies due to

defendant Johnson-Dovey’s delay. 

The court finds that plaintiff has failed to state a cognizable claim concerning the

defendant’s failure to comply with time requirements for processing his inmate appeal. State

laws and regulations that contain merely procedural requirements, even if those requirements are

mandatory under state law, do not give rise to a constitutionally cognizable liberty interest. 

Toussaint v. McCarthy, 801 F.2d 1080, 1098 (9th Cir. 1987). The court also notes that the

California Code of Regulations, title 15, section 1073(a)(5) provides that procedures for

resolving inmates grievances shall include “provision for response within a reasonable time

limit[.]” 15 Cal. Code Regs. tit. 15, § 1073(a)(5) (2006). Thus, California’s regulation

concerning the processing of inmate appeals provides for flexible appeal time limits. Such a

procedural requirement does not create a liberty interest that may serve as the basis for a due

process claim.

Plaintiff also fails to state a cognizable access to court claim. Such a claim arises

under the Due Process Clause of the Fourteenth Amendment. See Royse v. Superior Court, 779

F.2d 573 (9th Cir. 1986). While this right is well established, an inmate who alleges interference

with his right of access to the courts must also allege actual injury. Lewis v. Casey, 518 U.S.

343, 351 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Vandelft v. Moses, 31 F.3d 794,

796 (9th Cir. 1994). “Actual injury” means a “specific instance in which an inmate was actually

denied access to the courts.” Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989). Here,

 /////

/////

/////

Case 2:04-cv-01803-GEB-DAD Document 5 Filed 10/03/06 Page 2 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 The court would also observe that plaintiff’s bare allegation that he was “prevented” 2

from filing suit by defendant’s delay in processing his grievance may stem from plaintiff’s

misunderstanding of the law in this area. First, the intersection of exhaustion and statute of

limitations requirements creates no problem for prisoners because the statute of limitations for

filing suit is tolled while a prisoner completes the mandatory exhaustion process. Brown v.

Valoff, 422 F. 3d 926, 943 (9th Cir. 2005) (citing cases). In addition, excessive delay by prison

officials in responding to grievances, particularly time-sensitive ones, demonstrates that no

administrative process is available thus relieving the prisoner of the exhaustion obligation. 

Brown v. Valoff, 422 F. 3d at 943. See also Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002)

(administrative remedy unavailable where prison security officials told inmate to wait to file

grievance until after the investigation was complete); Jernigan v. Stuchell, 304 F.3d 1030, 1032

(10th Cir. 2002); Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001). In either case, a prisoner

is not prevented from filing suit by the delay of prison officials in responding to a grievance.

3

plaintiff makes only a vague and conclusory assertion that he was prevented from filing a suit.2

Such a general allegation is insufficient to state a cognizable claim of denial of access to the

courts. 

Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for

failure to state a claim. 

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, plaintiff may file written

objections with the court. The document should be captioned “Objections to Magistrate Judge’s

Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

F.2d 1153 (9th Cir. 1991).

DATED: October 2, 2006.

DAD:4

camp1803.56

Case 2:04-cv-01803-GEB-DAD Document 5 Filed 10/03/06 Page 3 of 3