Govind v. Felker et al
Filing
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ORDER signed by District Judge Otis D. Wright, II on 06/17/11 GRANTING 44 Motion to Dismiss. (Michel, G)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DANIEL H. GOVIND,
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Plaintiff,
vs.
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VEAL, et al
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Defendants
_________________________
) No. 2:06 CV 02467 Consolidated with
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2:08 CV-01183 ODW
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ORDER
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Pending before the Court is Defendant Tasi’s motion to dismiss
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pursuant to Federal Rule of Civil Procedure 12(b)(6) filed March 3, 2011.
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Defendant Tasi contends that the First Amended Complaint fails to state a
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claim upon which relief can be granted. [44] Indeed, it is alleged that
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Correctional Officer Tasi participated in the confiscation of items of Plaintiff’s
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personal property.
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respond to the inmate appeal which plaintiff initiated following the confiscation.
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Plaintiff argues that these facts constitute a claim under 42 USC § 1983.
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It is further alleged that Tasi subsequently failed to
Section 1983 provides in pertinent part: “Every person who, under color
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of any statute . . . regulation, custom or usage of any State . . . subjects, or
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causes to be subjected, any citizen of the United States or other person within
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the jurisdiction thereof to the deprivation of any rights, privileges or immunities
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secured by the Constitution and laws, shall be liable to the party injured in an
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action at law . . .”
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are acting under color of state law. See Leer v. Murphy, 844 F.2d 628, 633
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(9th Cir. 1988.)
Prison officials, when acting in their official capacity,
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Section 1983 can provide a cause of action against persons acting
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under color of state law who have violated rights guaranteed by the
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Constitution or federal statutes. See Gonzaga University v. Doe, 536 U.S.
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273, 279 (2002).
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Where a prisoner alleges that deprivation of a liberty or property interest,
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caused by an unauthorized negligent or intentional action of a prison official,
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the prisoner cannot state a constitutional claim where the state provides an
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adequate post-deprivation remedy. See Zinermon v. Burch, 494 U.S. 113,
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129-32 (1990); Hudson v. Palmer, 469 U.S. 517, 533 (1984).
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allegation itself testifies to the existence of post-deprivation remedies.
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Specifically, plaintiff complains about the lack of response to his inmate
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appeal. Because he has remedies available to him under California state law
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(Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) ) he has not, and
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indeed cannot state a claim for a constitutional deprivation of his interests in
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property by state employees.
Plaintiff’s
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As for his claim that Tasi refused to respond to his appeal regarding the
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confiscation of his property, this cannot serve as a basis for 1983 liability. The
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Supreme Court has held that to obtain a protectable right an individual must
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have a “legitimate claim of entitlement to it.”
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Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). There is no
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legitimate claim of entitlement to a grievance procedure. Mann v. Adams,
Greenholtz v. Inmates of
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855 F.2d 639, 640. If there is no legitimate claim to a grievance procedure,
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there can be no claim to a properly functioning one.
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To the extent Plaintiff bases his 1983 claim on Tasi’s refusal to respond
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to the appeal process it fails.
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As a result, Tasi’s motion to dismiss is
GRANTED.
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DATED: June 17, 2011
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OTIS D. WRIGHT, II, DISTRICT JUDGE
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