Holmes v. Cable et al
Filing
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ORDER DISMISSING Action With Prejudice For Failure to State a Claim 19 ; CLERK TO CLOSE CASE, signed by Magistrate Judge Gerald B. Cohn on 6/24/11. (CASE CLOSED)(Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TYRONE TORRENCE HOLMES,
CASE NO. 1:09-cv-01973-GBC (PC)
Plaintiff,
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v.
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ORDER DISMISSING ACTION WITH
PREJUDICE FOR FAILURE TO STATE A
CLAIM
CABLE, et al.,
(ECF No. 19)
Defendants.
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CLERK TO CLOSE CASE
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SCREENING ORDER
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I.
PROCEDURAL HISTORY
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Plaintiff Tyrone Torrence Holmes is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action
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on November 9, 2009 and consented to Magistrate Judge jurisdiction on November 24,
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2009. (ECF Nos. 1 & 5.) Plaintiff’s original complaint was dismissed, with leave to amend,
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for failure to state a claim. (ECF No. 11.) On March 17, 2011, Plaintiff filed his First
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Amended Complaint, which was also dismissed with leave to amend. (ECF Nos. 14 & 16.)
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Plaintiff then filed a Second Amended Complaint on June 16, 2011. (ECF No. 19.) This
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Second Amended Complaint is now before the Court for screening.
For the reasons set forth below, the Court finds that Plaintiff’s Second Amended
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Complaint fails to state a claim upon which relief may be granted.
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II.
SCREENING REQUIREMENTS
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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which
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relief may be granted, or that seek monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be
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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set
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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its
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face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual
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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
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III.
SUMMARY OF COMPLAINT
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Plaintiff brings this action for violations of his right to due process under the
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Fourteenth Amendment and retaliation under the First Amendment. Plaintiff names the
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following individuals as Defendants: Cable, Correctional Officer, Receiving and Release
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(“R&R”) Property Officer; and E. Noyce, Correctional Officer, Sergeant R&R.
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Defendants were employed at Tehachapi State Prison at the time of the incident.
Both
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Plaintiff alleges as follows: On March 16, 2008, Defendant Cable came to Plaintiff’s
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cell and showed Plaintiff two lists, one of his allowable property and one of his unallowable
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property. Plaintiff noted that all of his property was on the form. Plaintiff then told Cable
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that he would be appealing this matter. Cable responded that he would hold Plaintiff’s
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property for 45 days and that Plaintiff should direct his 602 appeal to Cable because he
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was the issuing officer. Plaintiff sent in his 602 appeal, which was returned to him the
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following day signed by an unknown officer stating that Plaintiff’s property was gone.
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Plaintiff was interviewed at the First Level of appeal by Defendant Noyce about the
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removal of his television, forged forms, and the destruction of Plaintiff’s personal property.
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Noyce wanted Plaintiff to sign a different consent form. Plaintiff refused so Noyce ordered
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that Plaintiff’s television be removed from his cell.
Plaintiff seeks compensation for damages and destruction of personal property,
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compensatory and punitive damages, and legal fees.
IV.
ANALYSIS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured
by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.
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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.
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1997) (internal quotations omitted).
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A.
Due Process
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Plaintiff appears to be alleging that his due process rights were violated by both
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Defendants. Plaintiff states that he was deprived his property and that it was eventually
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destroyed.
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The Due Process Clause protects prisoners from being deprived of property without
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due process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and prisoners have a
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protected interest in their personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir.
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1974). However, while an authorized, intentional deprivation of property is actionable
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under the Due Process Clause, Hudson v. Palmer, 468 U.S. 517, 532 n.13 (1984) (citing
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Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982)); Quick v. Jones, 754 F.2d
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1521, 1524 (9th Cir. 1985), neither negligent nor unauthorized intentional deprivations of
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property by a state employee “constitute a violation of the procedural requirements of the
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Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation
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remedy for the loss is available,” Hudson, 468 U.S. at 533.
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California Law provides an adequate post-deprivation remedy for any property
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deprivations. See Cal. Gov’t Code §§ 895; Barnett v. Centoni, 31 F.3d 813, 816-17 (9th
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Cir. 1994). California’s Tort Claims Act requires that a tort claim against a public entity or
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its employees be presented to the California Victim Compensation and Government Claims
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Board, formerly known as the State Board of Control, no more than six months after the
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cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950-950.2 (West
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2006). Presentation of a written claim, and action on or rejection of the claim, are
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conditions precedent to suit. State v. Superior Court of Kings County (Bodde), 90 P.3d
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116, 123 (2004); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir.
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1995). To state a tort claim against a public employee, a plaintiff must allege compliance
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with the Tort Claims Act. State v. Superior Court, 90 P.3d at 123; Mangold, 67 F.3d at
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1477; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988).
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Plaintiff claims that his belongings were held and then, apparently, destroyed.
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Plaintiff again fails to offer proof of compliance with the California Tort Claims Act. Thus,
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Plaintiff has again failed to allege facts sufficient to find a violation of his due process
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rights. Plaintiff was previously notified of the relevant legal standards and the deficiencies
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in his previous complaint. His Second Amended Complaint contains more detail, but no
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allegations that are materially different than those contained in his previous complaint.
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Because Plaintiff’s Second Amended Complaint again fails to state a claim against any
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named Defendant, the Court will dismiss this claim without further leave to amend
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B.
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Plaintiff states that he was being retaliated against by Defendant Noyce for
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Retaliation
exercising his constitutional rights.
“Within the prison context, a viable claim of First Amendment retaliation entails five
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basic elements: (1) An assertion that a state actor took some adverse action against an
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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled
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the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably
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advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th
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Cir. 2005).
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It is difficult to determine what action Plaintiff is alleging retaliation for: refusing to
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sign the form from Noyce or filing a grievance. Filing a grievance is a protected action
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under the First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir.
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1989). Being deprived of personal property is an adverse action. See Rhodes v. Robinson,
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408 F.3d 559, 568 (9th Cir. 2005) (arbitrary confiscation and destruction of property,
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initiation of a prison transfer, and assault in retaliation for filing grievances). Thus, if
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Plaintiff is alleging retaliation because he filed a grievance, then he has alleged facts
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sufficient to meet the first and third prongs of a retaliation claim.
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The second element of a prisoner retaliation claim focuses on causation and motive.
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See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his
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protected conduct was a “‘substantial’ or ‘motivating’ factor behind the defendant’s
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conduct.” Id. (quoting Morgan, 874 F.2d at 1314). Although it can be difficult to establish
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the motive or intent of the defendant, a plaintiff may rely on circumstantial evidence. Bruce
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v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that a prisoner established a triable
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issue of fact regarding prison officials’ retaliatory motives by raising issues of suspect
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timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997);
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Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“timing can properly be considered as
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circumstantial evidence of retaliatory intent”). Plaintiff alleges that Noyce took away his
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television after he refused the sign a form or drop the grievance. The timing appears
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suspect – Plaintiff refused to sign, and the television is then deemed unauthorized and
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confiscated. Additionally, Defendant Noyce was asking for the signature which Plaintiff
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refused to give, and Noyce also deemed the television unauthorized. Thus, Plaintiff has
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met the second element in his retaliation claim.
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With respect to the fourth prong, “[it] would be unjust to allow a defendant to escape
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liability for a First Amendment violation merely because an unusually determined plaintiff
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persists in his protected activity . . . .” Mendocino Envtl. Ctr. v. Mendocino County, 192
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F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an official’s
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acts would chill or silence a person of ordinary firmness from future First Amendment
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activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192 F.3d at 1300).
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Even though it appears that Plaintiff’s First Amendment rights were not chilled as he
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continued to file grievances, the alleged actions of Defendants would chill or silence a
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person of ordinary firmness from pursuing First Amendment activities. Thus, Plaintiff has
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met the fourth prong for a retaliation claim.
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With respect to the fifth prong, a prisoner must affirmatively allege that “the prison
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authorities’ retaliatory action did not advance legitimate goals of the correctional institution
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or was not tailored narrowly enough to achieve such goals.” Rizzo, 778 F.2d at 532. This
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is not a high burden to reach. See id. (prisoner’s allegations that search was arbitrary and
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capricious sufficient to satisfy this inquiry). Plaintiff again failed to address this prong at
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all. It appears to the Court that Plaintiff’s placement in SHU could serve as the basis for
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deprivation of certain personal property, which would serve a legitimate institutional goal.
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Plaintiff did not refute this conclusion which was also stated in the prior screening order.
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Plaintiff was previously notified of the relevant legal standards and the deficiencies
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in his previous complaint. His Second Amended Complaint attempts to clarify his claim,
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but contains no additional allegations nor does it address the legal standards specified by
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the Court. Because Plaintiff’s Second Amended Complaint again fails to state a claim
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against any named Defendant, the Court will dismiss this claim without further leave to
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amend.
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V.
CONCLUSION AND ORDER
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The Court finds that Plaintiff’s Second Amended Complaint fails to state any Section
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1983 claims upon which relief may be granted against the named Defendants. Under Rule
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15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be freely given when
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justice so requires.” In addition, “[l]eave to amend should be granted if it appears at all
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possible that the plaintiff can correct the defect.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th
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Cir. 2000) (internal citations omitted).
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complaints and received substantial guidance from the Court in two screening orders.
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(ECF Nos. 1, 11, 14, 16, & 19.) Even after receiving the Court’s guidance, Plaintiff failed
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to make alterations or to include additional facts to address the noted deficiencies.
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Because of this, the Court finds that the deficiencies outlined above are not capable of
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being cured by amendment, and therefore orders that further leave to amend not be
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granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
However, in this action, Plaintiff filed three
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Accordingly, based on the foregoing, the Court HEREBY ORDERS that this action
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be DISMISSED in its entirety, WITH PREJUDICE, for failure to state a claim upon which
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relief may be granted.
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IT IS SO ORDERED.
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Dated:
1j0bbc
June 24, 2011
UNITED STATES MAGISTRATE JUDGE
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