Sperry v. Mendoza et al
Filing
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ORDER Dismissing Action for Failure to State a Claim Under Section 1983, and Directing Clerk's Office to Enter Judgment; ORDER That Dismissal is Subject to 28 USC 1915(G), signed by Magistrate Judge Barbara A. McAuliffe on 11/23/11. CASE CLOSED. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICKEAL SPERRY,
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Plaintiff,
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CASE NO. 1:10-cv–01650-BAM PC
ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM UNDER
SECTION 1983, AND DIRECTING CLERK’S
OFFICE TO ENTER JUDGMENT
v.
P. MENDOZA, et al.,
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Defendants.
ORDER THAT DISMISSAL IS SUBJECT TO
/ 28 U.S.C. § 1915(G)
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II.
Screening Requirement
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Plaintiff Mickeal Sperry is a state prisoner proceeding pro se and in forma pauperis in this
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civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is the complaint, filed
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September 13, 2010. (ECF No. 1.)
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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In determining whether a complaint states a claim, the Court looks to the pleading standard
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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and
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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it
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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
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Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
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544, 555, 127 S. Ct. 1955 (2007)).
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II.
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Discussion
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and
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the incidents in the complaint occurred while he was housed at Pleasant Valley State Prison.
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Plaintiff alleges that he gave Defendant Mendoza a trust withdrawal form for postage to mail his
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television home. On December 10, 2009, Plaintiff received a notice that his television had been
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disposed of. Plaintiff did not violate any rules, he was just attempting to mail his television home.
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Defendants Huckabay, Noel, and Harton violated Plaintiff’s right to file a complaint against
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a police officer by not processing his appeal. Plaintiff seeks injunctive relief requiring Defendants
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to provide him with a similar item and that the Attorney General represent Plaintiff in an infraction
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for embezzlement.
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While an authorized, intentional deprivation of property is actionable under the Due Process
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Clause, neither a negligent nor intentional unauthorized deprivation of property by a prison official
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is actionable if a meaningful postdeprivation remedy is available for the loss. Hudson v. Palmer, 468
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U.S. 517, 533 (1984); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1984). Plaintiff alleges that
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his property was disposed of when he attempted to have it mailed home. Whether the cause of the
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property loss was intentional and unauthorized or negligent, Due Process is satisfied if there is a
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meaningful postdeprivation remedy available to Plaintiff. Hudson, 468 U.S. at 533. Plaintiff has
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an adequate post-deprivation remedy available under California law. Barnett v. Centoni, 31 F.3d
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813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810-895). Therefore, Plaintiff has failed to
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state a cognizable claim for the disposal of his television set.
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Further Plaintiff does not have a constitutionally protected right to a grievance procedure or
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to the processing of his grievances. Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Buckley
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v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). Plaintiff has failed to state a cognizable claim as the
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failure to process an inmates grievance, “without more, is not actionable under section 1983.”
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Buckley, 997 F.2d at 495. Under certain circumstances not presented here, the wrongful rejection
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of an appeal that leads to the dismissal of qualifying litigation might give rise to a claim for denial
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of access to the courts. See Lewis v. Casey, 518 U.S. 343, 351-55 (1996). The right to access the
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court is merely the right to bring to court a grievance the inmate wishes to present, and is limited to
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direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at 354. This does
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not include the right to pursue criminal charges against Defendant Mendoza for embezzlement.
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III.
Conclusion and Order
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Plaintiff’s complaint fails to state a claim for relief under section 1983. Because the
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deficiencies identified are not amenable to being cured by amendment, leave to amend shall not be
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granted. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Accordingly, pursuant to 28
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U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action is HEREBY DISMISSED, with prejudice,
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based on Plaintiff’s failure to state a claim upon which relief may be granted under section 1983 and
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the Clerk’s Office shall enter judgment. This dismissal is subject to the “three-strikes” provision set
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forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, No. 08-15620, 2011 WL 4436248, at *4 (9th Cir.
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Sept. 26, 2011).
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IT IS SO ORDERED.
Dated:
10c20k
November 23, 2011
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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