(PC) Sneed v. Peery, et al, No. 2:2015cv00921 - Document 24 (E.D. Cal. 2015)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/10/15 vacating 17 FINDINGS AND RECOMMENDATIONS. Also, RECOMMENDING that plaintiff's amended complaint be dismissed for failure to state a claim upon which relief can be granted; and this case be closed. Referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONNIE KAY SNEED, 12 Plaintiff, 13 v. 14 S. PEERY, et al., 15 No. 2:15-cv-0921 WBS CKD P ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a California prisoner proceeding pro se. On October 6, 2015, the court 18 recommended that this action be dismissed for plaintiff’s failure to file an amended complaint as 19 required by this court’s August 21, 2015 order. Plaintiff has now filed an amended complaint. 20 Good cause appearing, the October 6, 2015 findings and recommendations will be vacated. 21 The court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 24 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 25 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 26 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 27 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 28 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 1 1 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 2 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 3 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 4 Cir. 1989); Franklin, 745 F.2d at 1227. 5 In order to avoid dismissal for failure to state a claim a complaint must contain more than 6 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 7 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 8 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 9 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 10 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 11 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 12 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 13 at 678. When considering whether a complaint states a claim upon which relief can be granted, 14 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 15 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 16 U.S. 232, 236 (1974). 17 In his amended complaint, plaintiff alleges, as he did in his original complaint, that 18 correctional officers either stole or destroyed his personal property. As plaintiff was informed 19 when his original complaint was dismissed with leave to amend, the United States Supreme Court 20 has held that an unauthorized intentional deprivation of property by a state employee does not 21 generally constitute a violation of the Due Process Clause of the Fourteenth Amendment. 22 Hudson v. Palmer, 468 U.S. 517, 533 (1984). Plaintiff fails to point to anything suggesting 23 deviation from that general rule is warranted here. Because plaintiff fails to state a claim upon 24 which relief can be granted with respect to his allegations of intentional and unauthorized 25 deprivation of personal property, or in any other respect, plaintiff’s amended complaint should be 26 dismissed. Because granting leave to amend a second time appears futile, this case should be 27 closed. 28 ///// 2 1 In accordance with the above, IT IS HEREBY ORDERED that the court’s October 6, 2 2015 findings and recommendations are vacated. 3 IT IS HEREBY RECOMMENDED that: 4 1. Plaintiff’s amended complaint be dismissed for failure to state a claim upon which 5 relief can be granted; and 6 2. This case be closed. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, plaintiff may file written objections 10 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 11 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 12 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 13 (9th Cir. 1991). 14 Dated: November 10, 2015 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 1 snee0921.dis 21 22 23 24 25 26 27 28 3

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