FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND

DENNIS L. BECK, Magistrate Judge.

Plaintiff Andre L. Revis ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 28 U.S.C. § 1983. Plaintiff filed this action in the Kings County Superior Court on April 16, 2013. On July 29, 2013, Defendants C. Barnett, T. Campbell, K. Cribbs, D. Hernandez, E. Jarvis, S. Johnson and S. Torres paid the filing fee and removed the action to this Court.

On February 7, 2014, the Court screened Plaintiff's complaint and dismissed it with leave to amend. Plaintiff filed his First Amended Complaint on March 3, 2014. He names R. Davis, S. Johnson, D.R. Hernandez, C. Barnett, T. Campbell, K. Cribbs, S. Torres and John/Dane Doe as Defendants.

A. SCREENING REQUIREMENT

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to `state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

B. SUMMARY OF PLAINTIFF'S ALLEGATIONS

Plaintiff is currently incarcerated at the California Substance Abuse Treatment Facility in Corcoran, California, where the events at issued occurred.

On January 3, 2011, Plaintiff was instructed to sign the Property Inventory Receipt. He signed the form under duress so that he could receive necessities and health care items.

On August 5, 2011, Plaintiff was given another property form. He requested that his excess personal property be mailed to an address he provided.

On August 11, 2011, Plaintiff attempted to recover his personal property after custody staff failed to adequately list his personal property. Plaintiff refused to sign the property inventory receipt.

On August 25 and September 21, 2011, Defendant Torres responded to Plaintiff's appeal by attaching a rejection notice. Plaintiff contends that he made the necessary corrections, but his appeal was cancelled on October 12, 2011, by Defendant Cribbs.

On October 12, 2011, Plaintiff received a systematic appeal cancellation notice for failure to follow instructions.

On November 14, 2011, Plaintiff filed an inmate appeal relating to his property disposition. The appeal was screened out arbitrarily.

On November 22, 2011, Plaintiff field another appeal related to the disposition of his property.

Plaintiff made the stated changes and refiled the appeal on November 26, 2011, and again on December 12, 2011. Plaintiff was warned of appeal system abuse and he filed another appeal.

On December 14, 2011, Plaintiff received a response indicating that his personal property was mailed out to the provided address.

On December 19, 2011, the appeal was cancelled for failure to meet the time constraints. Plaintiff contends that the screeners failed to read Plaintiff's notes.

On February 11, 2012, Plaintiff received a Second Level response from Defendant Hernandez providing information from Federal Express. The information indicated that Plaintiff's property was delivered on August 22, 2011.

On February 12, 2012, Defendant Barnett claimed that he interviewed Plaintiff. Plaintiff alleges that Defendant Barnett inappropriately rejected the appeal even though Plaintiff provided all documentation.

After numerous appeals, Defendants never gave Plaintiff's property claims any consideration. He believes that Defendants conspired against him, resulting in the loss of his personal property. Plaintiff also contends that CDCR had a responsibility to ensure that Federal Express picked up and delivered Plaintiff's property to the requested address. Plaintiff states that the property was never delivered. Plaintiff believes that prison administrators should be held fully responsible for the lost personal property.

Plaintiff contends that Defendants Davis, Johnson and Hernandez "acted bias negligently, unprofessionally and retaliatory prejudicially reckless in collaboration/corroboration." ECF No. 10, at 17.

Plaintiff alleges that Defendants Barnett, Campbell, Cribbs, Torres, Jarvis and Does acted with "malicious deliberate indifference towards Plaintiff's contractual liberty interest and due process guarantees." ECF No. 10, at 18.

As a result, Plaintiff contends that he suffered violations of the First, Eighth and Fourteenth Amendments.

C. DISCUSSION

1. Fourteenth Amendment

a. Inmate Appeals Process

"The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at state." Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384 (2005). Plaintiff does not a have protected liberty interests in the processing his appeals, and therefore, he cannot pursue a claim for denial of due process with respect to the handling or resolution of his appeals. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)0.

Moreover, in general, denying a prisoner's administrative appeal does not cause or contribute to the underlying violation. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) (quotation marks omitted). However, because prison administrators cannot willfully turn a blind eye to constitutional violations being committed by subordinates, Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006), there may be limited circumstances in which those involved in reviewing an inmate appeal can be held liable under section 1983. That circumstance has not been presented here.

The Court explained to Plaintiff in the prior screening order that he does not have a due process right with respect to the way in which his appeals were handled. Therefore, to the extent that Plaintiff continues to allege that Defendants wrongfully cancelled his appeals, arbitrarily screened out his appeals and/or inappropriately rejected his appeals, he does not state a claim. Even if Plaintiff disagrees with the outcome of his appeals, his disagreement does not rise to the level of a constitutional violation. The existence of an administrative remedy process does not create any substantive rights and cannot support a claim for relief for violation of a constitutional right. Ramirez, 334 F.3d at 860; Mann, 855 F.2d at 640.

Insofar as Plaintiff suggests that Defendants were aware of a constitutional violation but failed to remedy it, he provides no facts to support such a contention.

b. Deprivation of Property

The Due Process Clause of the Fourteenth Amendment of the United States Constitution protects Plaintiff from being deprived of property without due process of law, Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963 (1974), and Plaintiff has a protected interest in his personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). Authorized, intentional deprivations of property are actionable under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13, 104 S.Ct. 3194 (1984); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), but the Due Process Clause is violated only when the agency "prescribes and enforces forfeitures of property without underlying statutory authority and competent procedural protections," Nevada Dept. of Corrections v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (citing Vance v. Barrett, 345 F.3d 1083, 1090 (9th Cir. 2003)) (internal quotations omitted), cert. denied, 132 S.Ct. 1823 (2012).

Here, Plaintiff believes that Defendants are responsible for the alleged loss of his personal property. He alleges that even though Defendants told him that Federal Express shipped his excess property to the address he provided, the property was never delivered. However, as the Court explained in the prior screening order, Plaintiff's claims do not implicate due process concerns because the Due Process Clause is not violated by the random, unauthorized deprivation of property so long as the state provides an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194 (1984); Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). Plaintiff has an adequate post-deprivation remedy under California law and therefore, he may not pursue a due process claim arising out of the alleged loss of his personal property. Barnett, 31 F.3d at 816-17 (citing Cal. Gov't Code §§810-895).

Plaintiff therefore fails to state a claim under the Fourteenth Amendment.

2. Eighth Amendment

The Eighth Amendment's prohibition against cruel and unusual punishment protects prisoners not only from inhumane methods of punishment but also from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (1981)) (quotation marks omitted). While conditions of confinement may be, and often are, restrictive and harsh, they must not involve the wanton and unnecessary infliction of pain. Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted). Thus, conditions which are devoid of legitimate penological purpose or contrary to evolving standards of decency that mark the progress of a maturing society violate the Eighth Amendment. Morgan, 465 F.3d at 1045 (quotation marks and citations omitted); Hope v. Pelzer, 536 U.S. 730, 737, 122 S.Ct. 2508 (2002); Rhodes, 452 U.S. at 346.

Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation marks and citations omitted), but not every injury that a prisoner sustains while in prison represents a constitutional violation, Morgan, 465 F.3d at 1045 (quotation marks omitted). To maintain an Eighth Amendment claim, a prisoner must show that prison officials were deliberately indifferent to a substantial risk of harm to his health or safety. E.g., Farmer, 511 U.S. at 847; Thomas v. Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir. 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

Plaintiff's allegations continue to be deficient to state a claim. To the extent Plaintiff suggests that Defendants' decisions on his appeals violate the Eighth Amendment, he is incorrect. Moreover, that Plaintiff's excess property may not have reached its ultimate destination does not rise to the level of a condition that is "devoid of legitimate penological purpose or contrary to evolving standards of decency that mark the progress of a maturing society..." Morgan, 465 F.3d at 1045.

Plaintiff fails to state a claim under the Eighth Amendment.

3. First Amendment Retaliation

Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 at 1104; Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

In the prior screening order, the Court explained that although Plaintiff alleged retaliation, he did not provide supporting facts. In amending, Plaintiff has again failed to provide facts sufficient to state a retaliation claim.

To the extent that Plaintiff alleges a violation of the First Amendment based on his belief that he was denied access to the prison grievance procedure, he does not state a claim. Plaintiff was not denied access to the appeals process — he simply disagreed with the outcomes of his appeals. Because there is no constitutionally protected right to a prison grievance process, the handling of Plaintiff's grievances does not state a claim interference with Plaintiff's right to seek redress, Lewis v. Casey, 518 U.S. 343 (1996); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009). Plaintiff therefore fails to state a claim under the First Amendment.

D. RECOMMENDATION

Plaintiff's amended complaint fails to state a claim upon which relief may be granted under section 1983. The Court previously provided Plaintiff with an opportunity to amend and based on the nature of the deficiencies at issue, further leave to amend would be futile. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

Based on the foregoing, the Court HEREBY RECOMMENDS dismissal of this action for failure to state a claim for which relief may be granted.

These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 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).

IT IS SO ORDERED.