(PC) White v. Ervin, Jr. et al, No. 2:2009cv03475 - Document 10 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 6/4/10 RECOMMENDING that this action be remanded to the Superior Court of Sacramento County for proceedings on plaintiffs claims arising under state law. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 21 days.(Dillon, M)

Download PDF

(PC) White v. Ervin, Jr. et al Doc. 10 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DIWON WHITE, Plaintiff, 11 12 13 14 No. CIV S-09-3475 FCD KJM P vs. D. ERVIN, JR., et al., Defendants. FINDINGS AND RECOMMENDATIONS / 15 16 Defendants in this action are the California Department of Corrections and 17 Rehabilitation (CDCR) and certain employees. Plaintiff is a CDCR prisoner. Defendants 18 removed this action to this court on December 16, 2009. 19 The court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised 22 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may 23 be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 24 U.S.C. § 1915A(b)(1),(2). 25 26 In order to avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements 1 Dockets.Justia.com 1 of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other 2 words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 3 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a 4 claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. 5 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 6 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 7 S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be 8 granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 9 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. 10 Rhodes, 416 U.S. 232, 236 (1974). In his complaint, plaintiff complains about the fact that some of his personal 11 12 property was taken by certain defendants. While the taking of property without due process is 13 prohibited by the Fourteenth Amendment, the United States Supreme Court has held that “an 14 unauthorized intentional deprivation of property by a state employee does not constitute a 15 violation of the procedural requirements of the Due Process Clause of the Fourteenth 16 Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson v. 17 Palmer, 468 U.S. 517, 533 (1984). Because plaintiff can present his claim for unauthorized 18 deprivation of property in state court pursuant to California Government Code § 810 et seq., he 19 has no federal violation of due process claim. Plaintiff also asserts in his complaint that he was subjected to a strip search in the 20 21 presence of women. This claim also does not amount to a violation of plaintiff’s Constitutional 22 rights. See Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988) (isolated strip search in 23 the presence of female officers does not amount to violation of inmate’s limited right to privacy 24 while in prison). 25 ///// 26 ///// 2 1 For these reasons, plaintiff’s complaint fails to state any valid claims arising 2 under federal law. Plaintiff himself suggests in his objections to removal, filed December 30, 3 2009, that he did not intend to raise a federal claim. 4 In light of the above, the court will recommend that this action be remanded to the 5 Superior Court of Sacramento County for proceedings on any claims arising under California 6 law because this court has no subject matter jurisdiction. See 28 U.S.C. § 1330 et seq.; 28 7 U.S.C. § 1447(c). 8 9 10 Accordingly, IT IS HEREBY RECOMMENDED that this action be remanded to the Superior Court of Sacramento County for proceedings on plaintiff’s claims arising under state law. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 13 one days after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 16 shall be served and filed within fourteen days after service of the objections. The parties are 17 advised that failure to file objections within the specified time may waive the right to appeal the 18 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 DATED: June 4, 2010. 20 21 22 1/mp whit3475.rem(1.19.10) 23 24 25 26 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.