-RBB Martin v. Hurtado et al, No. 3:2007cv00598 - Document 21 (S.D. Cal. 2008)
Court Description: ORDER Granting in Part and Denying in Part 13 Defendants' Motion to Dismiss Complaint: Plaintiff will be permitted to proceed only on claim one of his Complaint for retaliation against Defendants Hurtado and Bugarin. The due process violation alleged in claim two of the Complaint is DISMISSED against all Defendants. The retaliation claim against Defendant Aguirre alleged in claim two may also proceed. Signed by Judge Barry Ted Moskowitz on 9/3/2008. (All non-registered users served via U.S. Mail Service).(mjj)
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-RBB Martin v. Hurtado et al Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RANDIN LEE MARTIN, 12 v. 13 14 15 16 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT [DOC. NO. 13] J. HURTADO, Correctional Officer; C. BUGARIN, Correctional Officer; J. J. AGUIRRE, Correctional Sergeant, Defendants. 17 18 Civil No. 07cv0598 BTM (RBB) Plaintiff Randin Lee Martin, a state inmate proceeding pro se 19 and in forma pauperis, filed a civil rights complaint pursuant to 20 42 U.S.C. § 1983 on April 2, 2007 [doc. no. 1]. 21 that on September 26, 2005, Defendants J. Hurtado and C. Bugarin, 22 both correctional officers at Calipatria State Prison, violated 23 Plaintiff’s First Amendment right to freedom of speech by 24 confiscating his television in retaliation for an inmate grievance 25 he had filed against another officer. Martin alleges (Compl. 3.)1 Plaintiff’s 26 27 1 28 The pages of the Complaint are not consecutively numbered. Accordingly, for convenience, the Court will refer to the page numbers supplied by the electronic case filing system. -1- 07cv0598 BTM (RBB) Dockets.Justia.com 1 Complaint further alleges that Defendant J. J. Aguirre, in denying 2 the grievance Martin filed against Hurtado and Bugarin for 3 confiscating his television, violated Plaintiff’s Fourteenth 4 Amendment “administrative disciplinary due process protections in 5 knowing disregard of the fact that Plaintiff’s constitutional 6 rights were violated.” (Id. at 6.) Defendants filed a Motion to Dismiss the Complaint [doc. no. 7 8 13] on February 15, 2008, with a Memorandum of Points and 9 Authorities in Support of the Motion. Defendants argue the 10 current action should be dismissed pursuant to Federal Rule of 11 Civil Procedure 12(b)(6) for failure to state a claim for which 12 relief may be granted. 13 that Plaintiff fails to state a First Amendment retaliation claim 14 against Hurtado and Bugarin because the officers had a legitimate 15 penological reason to seize Martin’s television. 16 Additionally, the Complaint does not allege that these Defendants 17 actually chilled Plaintiff’s First Amendment rights. 18 Defendant Aguirre claims that he cannot be held liable for a First 19 Amendment claim under a theory of supervisory liability. 20 Lastly, Defendant Aguirre argues the Complaint fails to allege a 21 due process claim against him because Plaintiff does not have a 22 due process right to administrative grievance procedures. 23 8.) 24 (Defs.’ Mem. P. & A. 2.) They contend (Id. at 5-6.) (Id. at 7.) (Id.) (Id. at On June 16, 2008, Martin filed a Memorandum of Points and 25 Authorities in Opposition to Defendants’ Motion to Dismiss [doc. 26 no. 19], along with a Request for Judicial Notice and a 27 Declaration with four supporting exhibits. 28 Motion was suitable for resolution without oral argument pursuant -2- The Court found the 07cv0598 BTM (RBB) 1 to Civil Local Rule 7.1(d)(1). (Mins. Apr. 18, 2008 [doc. no. 2 18].) 3 Dismiss is GRANTED IN PART and DENIED IN PART. For the reasons set forth below, Defendants’ Motion to I. FACTUAL BACKGROUND 4 Plaintiff is currently incarcerated at Calipatria State 5 6 Prison. (See Compl. 1.) He was transferred to Calipatria on 7 September 26, 2005, from Corcoran State Prison. 8 4.) 9 transferred to Calipatria with him. (Pl.’s Opp’n 3- Martin had a thirteen-inch color television which was (Id. at 4-5; Compl. 3.) 10 Before he was transferred, the television was inspected by 11 officers at Corcoran who determined that it was in compliance with 12 institutional regulations. 13 (Pl.’s Opp’n 3-5.) Correctional Officers Hurtado and Bugarin processed Plaintiff (See Pl.’s 14 and his personal property upon arrival at Calipatria. 15 Opp’n 4; Compl. 3.) 16 legal property, Defendants Hurtado and Bugarin discovered a large 17 manila envelope which contained correspondence from Plaintiff to 18 the California Inspector General’s Office in which he complained 19 about an assault committed by another correctional officer. 20 (Compl. 3-4; Pl.’s Opp’n 4.) 21 marked “Confidential,” Hurtado and Bugarin read the grievance and 22 thereafter became “openly hostile” toward Martin. 23 Plaintiff alleges they seized his television for the purpose of 24 retaliating against him for filing an administrative grievance 25 alleging misconduct by another officer. 26 and Bugarin claimed that they seized the television because it was 27 in violation of regulations because the glue seals had been 28 tampered with. Martin contends that while searching his Although the material was clearly (Id.) (Compl. 3.) Defendants Hurtado (Id. at 5; Pl.’s Opp’n 6.) -3- 07cv0598 BTM (RBB) Martin filed an administrative grievance against Defendants 1 2 Hurtado and Bugarin which was reviewed by Defendant J. J. Aguirre, 3 a Calipatria correctional sergeant, on November 16, 2005. (Compl. 4 4.) 5 as a correctional sergeant and appeals reviewer by not conducting 6 an investigation into Martin’s allegations. 7 Plaintiff argues that by failing to intervene, Defendant Aguirre 8 affirmed Defendant Hurtado and Bugarin’s retaliatory actions, 9 thereby denying Plaintiff’s liberty interests in an unbiased 10 11 12 13 Plaintiff contends that Aguirre failed to perform his duties grievance procedure and meaningful review. (Pl.’s Opp’n 5.) (Id.) II. LEGAL STANDARDS APPLICABLE TO DEFENDANTS’ MOTION TO DISMISS A. Rule 12(b)(6) Motion to Dismiss A motion to dismiss for failure to state a claim pursuant to 14 Federal Rule of Civil Procedure 12(b)(6) tests the legal 15 sufficiency of the claims in the complaint. 16 County Bd. of Educ., 526 U.S. 629, 633 (1999). 17 allege “enough facts to state a claim to relief that is plausible 18 on its face.” 19 Ct. 1955, 1974 (2007). 20 allegations in the complaint, as well as reasonable inferences to 21 be drawn from them, and must construe the complaint in the light 22 most favorable to the plaintiff. 23 Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of 24 Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch. of Bus., 25 Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); N.L. 26 Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). 27 28 Davis v. Monroe The plaintiff must Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S. The Court must accept as true all material Cholla Ready Mix, Inc. v. The question is not whether the plaintiff will “ultimately prevail but whether the claimant is entitled to offer evidence to -4- 07cv0598 BTM (RBB) 1 support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 2 A dismissal under Rule 12(b)(6) is generally proper only where 3 there “is no cognizable legal theory or an absence of sufficient 4 facts alleged to support a cognizable legal theory.” 5 Block, 250 F.3d 729, 732 (9th Cir. 2001); Balistreri v. Pacifica 6 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). Navarro v. 7 The Court need not accept conclusory allegations in the 8 complaint as true; rather, it must “examine whether [they] follow 9 from the description of facts as alleged by the plaintiff.” 10 Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation 11 omitted); Halkin v. VeriFone, Inc., 11 F.3d 865, 868 (9th Cir. 12 1993); see also Cholla Ready Mix, 382 F.3d at 973 (citing Clegg v. 13 Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)) 14 (stating that on Rule 12(b)(6) motion, a court “is not required to 15 accept legal conclusions cast in the form of factual allegations 16 if those conclusions cannot reasonably be drawn from the facts 17 alleged[]”). 18 allegations that are merely conclusory, unwarranted deductions of 19 fact, or unreasonable inferences.” 20 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “Nor is the court required to accept as true Sprewell v. Golden State 21 In addition, when resolving a motion to dismiss for failure 22 to state a claim, the Court may not generally consider materials 23 outside the pleadings. 24 1194, 1197 n.1 (9th Cir. 1998); Jacobellis v. State Farm Fire & 25 Cas. Co., 120 F.3d 171, 172 (9th Cir. 1997); Allarcom Pay 26 Television Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th 27 Cir. 1995). 28 the complaint.” Schneider v. Cal. Dep’t of Corr., 151 F.3d “The focus of any Rule 12(b)(6) dismissal . . . is Schneider, 151 F.3d at 1197 n.1. -5- This precludes 07cv0598 BTM (RBB) 1 consideration of “new” allegations that may be raised in a 2 plaintiff’s opposition to a motion to dismiss brought pursuant to 3 Rule 12(b)(6). 4 236 (7th Cir. 1993); 2 James Wm. Moore et al., Moore’s Federal 5 Practice § 12.34[2], at 12-90 (3d ed. 2008) (“The court may not 6 . . . take into account additional facts asserted in a memorandum 7 opposing the motion to dismiss, because such memoranda do not 8 constitute pleadings under Rule 7(a)(footnote omitted).”). Id. (citing Harrell v. United States, 13 F.3d 232, But “[w]hen a plaintiff has attached various exhibits to the 9 10 complaint, those exhibits may be considered in determining whether 11 dismissal [i]s proper . . . .” 12 1484 (citing Cooper v. Bell, 628 F.2d 1208, 1210 n.2 (9th Cir. 13 1980)). 14 alleged in a complaint and whose authenticity no party questions, 15 but which are not physically attached to the pleading.” 16 Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other 17 grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th 18 Cir. 2002); Stone v. Writer’s Guild of Am. W., Inc., 101 F.3d 19 1312, 1313-14 (9th Cir. 1996). 20 consider matters that are subject to judicial notice. 21 of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). The Court may also consider “documents whose contents are Branch v. Additionally, the Court may Lee v. City These Rule 12(b)(6) guidelines apply to Defendants’s Motion 22 23 to Dismiss. 24 B. 25 Parks Sch. of Bus., 51 F.3d at Standards Applicable to Pro Se Litigants Where a plaintiff appears in propria persona in a civil 26 rights case, the Court must construe the pleadings liberally and 27 afford the plaintiff any benefit of the doubt. 28 Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). -6- Karim-Panahi v. The 07cv0598 BTM (RBB) 1 rule of liberal construction is “particularly important in civil 2 rights cases.” 3 1992). 4 complaint, however, the Court may not “supply essential elements 5 of claims that were not initially pled.” 6 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 7 and conclusory allegations of official participation in civil 8 rights violations are not sufficient to withstand a motion to 9 dismiss.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. In giving liberal interpretation to a pro se civil rights Ivey v. Bd. of Regents “Vague Id.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 10 646, 649 (9th Cir. 1984) (finding conclusory allegations 11 unsupported by facts insufficient to state a claim under § 1983). 12 “The plaintiff must allege with at least some degree of 13 particularity overt acts which defendants engaged in that support 14 the plaintiff’s claim.” 15 quotation omitted). 16 Jones, 733 F.2d at 649 (internal Nevertheless, the Court must give a pro se litigant leave to 17 amend his complaint unless it is “absolutely clear that the 18 deficiencies of the complaint could not be cured by amendment.” 19 Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987). 20 leave to amend is granted, the Court must provide the plaintiff 21 with a statement of the complaint’s deficiencies before a pro se 22 civil rights complaint may be dismissed. 23 at 623-24. 24 opportunity to amend effectively.” 25 1132, 1136 (9th Cir. 1987). 26 litigant’s complaint would be futile, denial of leave to amend is 27 appropriate. 28 2000). Even when Karim-Panahi, 839 F.2d This is “to ensure that the litigant uses the Eldridge v. Block, 832 F.2d But where amendment of a pro se See James v. Giles, 221 F.3d 1074, 1077 (9th Cir. -7- 07cv0598 BTM (RBB) 1 C. Stating a Claim Under 42 U.S.C. § 1983 2 To state a claim under § 1983, the plaintiff must allege 3 facts sufficient to show (1) a person acting “under color of state 4 law” committed the conduct at issue, and (2) the conduct deprived 5 the plaintiff of some right, privilege, or immunity protected by 6 the Constitution or laws of the United States. 7 (West 2003); Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th 8 Cir. 1986). III. MERITS OF DEFENDANTS’ MOTION TO DISMISS 9 10 42 U.S.C.A. § 1983 A. Plaintiff’s Request for Judicial Notice 11 Martin filed a Request for Judicial Notice [doc. no. 19], 12 wherein he requests that the Court take judicial notice of the 13 following regulations and operation procedures: 14 Code of Regulations section 3084.1, which establishes an inmate’s 15 right to appeal departmental decisions; (2) California Code of 16 Regulations section 3190, which concerns an inmate’s right to 17 possess personal property; (3) California Code of Regulations 18 section 3191, which concerns the registration and disposition of 19 an inmate’s personal property ; (4) California Code of Regulations 20 section 3144, which describes the procedures for inspecting an 21 inmate’s confidential mail; and (5) Calipatria State Prison 22 Operational Procedure manual describing “Inmate Property 23 Procedure.” (1) California (Pl.’s Req. for Judicial Notice 1-2.) 24 The Court may take judicial notice of any fact that is “not 25 subject to reasonable dispute in that it is either (1) generally 26 known within the territorial jurisdiction of the trial court or 27 (2) capable of accurate and ready determination by resort to 28 sources whose accuracy cannot reasonably be questioned.” -8- Fed. R. 07cv0598 BTM (RBB) 1 Evid. 201(b). “A court shall take judicial notice if requested by 2 a party and supplied with the necessary information.” 3 Evid. 201(d). Fed. R. “Administrative regulations fall within the category of facts 4 5 ‘capable of accurate and ready determination by resort to sources 6 whose accuracy cannot reasonably be questioned.’” 7 Trunk R.R., 306 F.3d 335, 349 (6th Cir. 2002) (quoting Fed. R. 8 Civ. P. 201(b)) (finding district court did not abuse its 9 discretion by taking judicial notice of certain regulations from Toth v. Grant 10 the Code of Federal Regulations); see also Whitington v. Sokol, 11 491 F. Supp. 2d 1012, 1019 (D. Colo. 2007) (citations omitted) 12 (taking judicial notice of regulations setting forth the Colorado 13 Department of Corrections’ administrative process). 14 the Court will take judicial notice of California Code of 15 Regulations sections 3084.1, 3190, 3191, and 3144, attached to 16 Plaintiff’s Request for Judicial Notice as Exhibits One through 17 Four. 18 public record and are not subject to reasonable dispute. 19 Bovarie v. Giurbino, 421 F. Supp. 2d 1309, 1314 (S.D. Cal. 2006) 20 (taking judicial notice of a section of the California Code of 21 Regulations). Accordingly, The facts contained in these regulations are matters of See 22 The Court will also take judicial notice of Exhibit Five, 23 Calipatria State Prison Operational Procedure number 3004, because 24 its authenticity is not questioned by any party and the facts 25 contained therein are not subject to dispute. 26 Terhune, No. 02-CV-5978 AWI-DLB PC, 2007 U.S. Dist. LEXIS 46538, 27 at *8-9 n.1 (E.D. Cal. June 27, 2007) (taking judicial notice of a 28 section from the Pleasant Valley State Prison Operations Procedure -9- See Murray v. 07cv0598 BTM (RBB) 1 manual); Gleave v. Graham, 954 F. Supp. 599, 605 (W.D.N.Y. 1997) 2 (taking judicial notice of “Program Statements” issued by the 3 Bureau of Prisons); Hodges v. Klein, 421 F. Supp. 1224, 1233 4 (D.N.J. 1976) (taking judicial notice of written regulations of 5 New Jersey’s Department of Corrections). 6 B. 7 Martin’s First Amendment Retaliation Claim “A prison inmate retains those first amendment rights that 8 are not inconsistent with his status as a prisoner or with the 9 legitimate penological objectives of the corrections system.” 10 Pell v. Procunier, 417 U.S. 817, 822 (1974). Prisoners’ First 11 Amendment rights include the right to free speech and to petition 12 the government. 13 2003); Bradley v. Hall, 64 F.3d 1276, 1278-79 (9th Cir. 1995); see 14 also Sandin v. Conner, 515 U.S. 472, 487 n.11 (1995). 15 Nevertheless, “the constitutional rights that prisoners possess 16 are more limited in scope than the constitutional rights held by 17 individuals in society at large.” 18 229 (2001). Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. Shaw v. Murphy, 532 U.S. 223, 19 The Constitution protects prisoners from deliberate 20 retaliation by government officials for the exercise of their 21 First Amendment rights. 22 (9th Cir. 2005); Vignolo v. Miller, 120 F.3d 1075, 1077-78 (9th 23 Cir. 1997). 24 inmate’s exercise of legitimate First Amendment rights, 25 retaliatory conduct is actionable regardless of whether it 26 otherwise constitutes misconduct. 27 Pratt v. Rowland, 65 F.3d 802, 806 & n.4 (9th Cir. 1995)); see 28 Thomas v. Evans, 880 F.2d 1235, 1242 (11th Cir. 1989)(“The penalty See Rhodes v. Robinson, 408 F.3d 559, 567 Because retaliation by prison officials may chill an - 10 - Rhodes, 408 F.3d at 567 (citing 07cv0598 BTM (RBB) 1 need not rise to the level of a separate constitutional 2 violation.”) 3 the allegedly retaliatory conduct and the action that provoked the 4 retaliation; a plaintiff must “show that the protected conduct was 5 a ‘substantial’ or ‘motivating’ factor in the defendant’s decision 6 [to act].” 7 (9th Cir. 1989) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. 8 v. Doyle, 429 U.S. 274, 287 (1977)). 9 Even so, there must be a causal connection between Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 To withstand a motion to dismiss, a plaintiff suing prison 10 officials pursuant to § 1983 for retaliation must allege facts 11 that show the following: 12 action against [the] inmate (2) because of (3) that prisoner’s 13 protected conduct, and . . . such action (4) chilled the inmate’s 14 exercise of his First Amendment rights, and (5) the action did not 15 reasonably advance a legitimate correctional goal.” 16 F.3d at 567-68 (citing Resnick v. Hayes, 213 F.3d 443, 449 (9th 17 Cir. 2000); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 18 1994)) (footnote omitted). (1) “[A] state actor took some adverse Rhodes, 408 19 1. Defendants Hurtado and Bugarin 20 In count one of his Complaint, Martin alleges that Defendants 21 Hurtado and Bugarin seized his television set in retaliation for 22 the filing of an administrative grievance against another peace 23 officer. 24 Bugarin assert that Martin’s Complaint fails to state a claim for 25 retaliation because their “actions reasonably advanced a 26 legitimate correctional goal and Plaintiff does not allege that 27 Defendants Hurtado and Bugarin’s actions chilled the exercise of 28 his First Amendment rights.” (Compl. 3.) In their Motion to Dismiss, Hurtado and (Defs.’ Mem. P. & A. 5.) - 11 - Martin 07cv0598 BTM (RBB) 1 argues that Defendants’ seizure of the television did not advance 2 a legitimate correctional goal because the television had not been 3 impermissibly altered, so there was no nonretaliatory reason for 4 Defendants to seize it. 5 Plaintiff claims he has properly alleged a chilling of his rights. 6 (Id. at 7.) a. 7 Additionally, Legitimate Correctional Goal “Because a prisoner’s First Amendment rights are necessarily 8 9 (Pl.’s Opp’n 7-8.) curtailed, . . . a successful retaliation claim requires a finding 10 that ‘the prison authorities’ retaliatory action did not advance 11 legitimate goals of the correctional institution or was not 12 tailored narrowly enough to achieve such goals.’” 13 Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (quoting Rizzo v. 14 Dawson, 778 F.2d 527, 532 (9th Cir. 1985)). 15 to state a cognizable retaliation claim, a plaintiff must allege 16 that the defendant’s retaliatory action did not serve a legitimate 17 penological purpose. 18 Rizzo, 778 F.2d at 532). Pratt v. Accordingly, in order Id.; Barnett, 31 F.3d at 815-16 (citing Defendants assert that Martin fails to state a claim for 19 20 retaliation because “[t]he confiscation of plaintiff’s altered 21 television set clearly advanced the legitimate correctional goal 22 of ensuring the safety and security of the institution, other 23 inmates, the correctional officers, and prison staff members.” 24 (Defs.’ Mem. P. & A. 5.) 25 prohibit inmates from possessing appliances that have been 26 altered, so Defendants claim they had an objectively legitimate 27 basis for confiscating the television. 28 3.) Calipatria State Prison regulations - 12 - (Id. at 7; Defs.’ Reply 07cv0598 BTM (RBB) 1 The Ninth Circuit has found that “preserving institutional 2 order, discipline, and security are legitimate penological goals.” 3 Barnett, 31 F.3d at 816. 4 legitimacy should be sufficient to defeat a prisoner’s retaliation 5 claim, even where there may be evidence of improper motive[.]” 6 (Defs.’ Mem. P. & A. 6 (citing Hartman v. Moore, 547 U.S. 250, 260 7 (2006).) 8 9 Defendants argue that “objective Nevertheless, a prison official cannot defeat a retaliation claim simply by pointing to “a general justification for a neutral Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 10 process . . . .” 11 2003). 12 procedure as a cover or a ruse to silence and punish [the inmate] 13 because he filed grievances, they cannot assert . . . a valid 14 penological purpose, even though he may have arguably ended up 15 where he belonged.” 16 showing of retaliatory harm, the burden shifts to the defendant 17 official to demonstrate that even without the impetus to retaliate 18 he would have taken the action complained of . . . .” 19 Moore, 547 U.S. at 260 (citing Mt. Healthy, 429 U.S. at 287). 20 objective legitimacy test, argued for by Defendants, (Defs.’ Mem. 21 P. &. A. 6), may ultimately preclude recovery, but at this stage, 22 the existence of a facially neutral prison regulation is not, by 23 itself, sufficient to defeat a plaintiff’s retaliation claim. 24 “But, if, in fact, the defendants abused the . . . Id. Once a plaintiff makes “a prima facie Hartman v. An The Complaint asserts that after reading Martin’s 25 confidential legal correspondence, Defendants Hurtado and Bugarin 26 “became openly hostile towards plaintiff and immediately seized 27 plaintiff’s authorized 13" color Zenith television.” 28 It further claims that “Defendant’s actions in seizing plaintiff’s - 13 - (Compl. 3.) 07cv0598 BTM (RBB) 1 television were done for the very purpose of ‘retaliating’ against 2 him for engaging in a protected activity, specifically, the filing 3 of an administrative inmate appeal complaint . . . .” 4 Finally, Martin alleges that “Defendants’ acts . . . constitute 5 punishment imposed in an ‘arbitrary and capricious’ manner, 6 without good cause, for the very purpose of arousing anger, 7 resentment, anguish, and hostility . . . .” (Id.) (Id. at 3-4.) 8 By alleging that the Defendants’ actions were “arbitrary and 9 capricious” and taken for the sole purpose of retaliating against 10 him, Plaintiff has sufficiently alleged the absence of a 11 legitimate correctional reason for the seizure of his television. 12 As the Ninth Circuit held in Rizzo, 778 F.2d at 532, “the 13 plaintiff has alleged that [the defendants’] actions were 14 retaliatory and were arbitrary and capricious. 15 sufficiently alleged that the retaliatory acts were not a 16 reasonable exercise of prison authority and that they did not 17 serve any legitimate correctional goal.” He has thereby 18 The California Code of Regulations provides that when an 19 inmate is in possession of a television, a staff member must seal 20 the outside surfaces with hot glue, so that all parts of the 21 appliance that could be used to access the television’s interior 22 are sealed. 23 inmate tampers with the glue seals, he may be subject to 24 disciplinary action and the television may be confiscated. 25 Code Regs. tit. 15, § 3190(l) (2008). 26 Bugarin seized Plaintiff’s television, they asserted that it was 27 confiscated because Martin had tampered with the glue seals. 28 (Compl. 5.) Cal. Code Regs. tit. 15, § 3190(k) (2008). If an Cal. When Defendants Hurtado and Martin, however, contends that the glue seals were - 14 - 07cv0598 BTM (RBB) 1 satisfactory when he was transferred to Calipatria, so Defendants’ 2 stated reason for confiscating the television was untrue. 3 Opp’n 8.) 4 (Pl.’s The Court need not resolve the factual issue at this time. 5 In order to rule on Defendants’ Motion to Dismiss, the Court must 6 determine whether, on the face of his Complaint, Plaintiff has 7 alleged the necessary elements to state a claim for retaliation. 8 See Bell Atlantic, __ U.S. at __, 127 S. Ct. at 1974; see also 9 Ramirez v. Arlequin, 447 F.3d 19, 24-25 (1st Cir. 2006) (refusing 10 to resolve the issue of whether the city had a legitimate interest 11 underlying its allegedly retaliatory actions because for purposes 12 of the 12(b)(6) motion to dismiss, all that mattered was the 13 allegations on the face of the complaint); Rhodes, 408 F.3d at 14 566, 568 (denying 12(b)(6) motion to dismiss because prisoner’s 15 complaint properly alleged the defendant’s actions were 16 retaliatory and did not advance legitimate penological goals). 17 In their Reply, Defendants argue that Exhibit 2 attached to 18 Plaintiff’s Opposition demonstrates that “Defendants’ actions were 19 based on legitimate penological goals of confiscating an altered 20 appliance.” 21 referred to in, Plaintiff’s Complaint. 22 district court may not consider any material beyond the pleadings 23 in ruling on a Rule 12(b)(6) motion.’” Lee v. City of Los Angeles, 24 250 F.3d 668, 688 (9th Cir. 2001)(quoting Branch v. Tunnell, 14 25 F.3d 449, 453 (9th Cir. 1994)). 26 as one for summary judgment. 27 material which is properly submitted as part of the complaint and 28 “matters of public record” which may be judicially noticed. (Defs.’ Reply 3.) This document is not a part of, or “As a general rule, ‘a Otherwise, the motion is treated Id. - 15 - There are exceptions for Id. 07cv0598 BTM (RBB) 1 at 688-89. Exhibit 2, an inmate grievance form, is neither. “If 2 the documents are not physically attached to the complaint, they 3 may be considered if the documents’ ‘authenticity . . . is not 4 contested’ and ‘the plaintiff’s complaint necessarily relies’ on 5 them.” 6 705-06 (9th Cir. 1998). Id. at 688(quoting Parrino v. FHD, Inc., 146 F.3d 699, Even if Martin’s grievance form meets this test, his claim 7 8 survives. Whether the defendants abused the property protocol as 9 a ruse to punish Plaintiff for filing prior grievances against 10 other correctional officers cannot be resolved on this Rule 11 12(b)(6) motion. See Bruce v. Ylst, 351 F.3d at 1289. 12 Plaintiff’s Complaint properly alleges that Defendants 13 confiscated his television for no legitimate reason and only for 14 the purpose of retaliating against him for exercising his First 15 Amendment rights. 16 dismiss pursuant to Rule 12(b)(6). 17 Hurtado and Bugarin’s Motion to Dismiss is DENIED on this ground. b. 18 This is sufficient to withstand a motion to Accordingly, Defendants Chilling the Exercise of First Amendment Rights One of the necessary elements of a retaliation claim is that 19 20 the defendants’ retaliatory conduct chilled the plaintiff’s 21 exercise of his First Amendment rights. 22 68. 23 of his First Amendment rights to file grievances and to pursue 24 civil rights litigation in order to perfect a retaliation claim. 25 Speech can be chilled even when not completely silenced.” 26 568. 27 to allow a defendant to escape liability for a First Amendment 28 violation merely because an unusually determined plaintiff Rhodes, 408 F.3d at 567- But a plaintiff is not required to allege “a total chilling Id. at As the Ninth Circuit has recognized, “‘[It] would be unjust - 16 - 07cv0598 BTM (RBB) 1 persists in his protected activity . . . .’” 2 Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 3 (9th Cir. 1999)). 4 Id. at 569 (quoting Accordingly, the correct inquiry in determining liability is 5 “‘whether an official’s acts would chill or silence a person of 6 ordinary firmness from future First Amendment activities.’” 7 Mendocino Entl. Ctr., 192 F.3d at 1300 (quoting Crawford-El v. 8 Britton, 93 F.3d 813, 826 (D.C. Cir. 1996), vacated, 523 U.S. 1273 9 (1997)); see also Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th 10 Cir. 1999) (“Retaliation against a prisoner is actionable if it is 11 capable of deterring a person of ordinary firmness from exercising 12 his or her right to access the courts.”). 13 Defendants assert that Martin’s Complaint fails to state a 14 claim for retaliation because he does not allege that Defendants’ 15 conduct chilled or silenced him in any way. 16 7; Defs.’ Reply 4.) 17 any allegation that Plaintiff’s First Amendment rights were 18 chilled or that he was deterred from filing future grievances 19 against prison staff. 20 contends that his Complaint properly alleges this element because, 21 “by alleging the Defendants’ actions were retaliatory, arbitrary, 22 and capricious punishment for exercising his First Amendment 23 right[, Plaintiff] has thereby sufficiently alleged that 24 Defendants Hurtado and Bugarin’s actions chilled this right via 25 the deprivation suffered.” 26 seizing his television in retaliation for filing a prison 27 grievance, Defendants undermined Plaintiff’s “only viable 28 mechanism to remedy prison injustices.” (Defs.’ Mem. P. & A. The face of the Complaint does not contain (See Compl. 3-4.) Nevertheless, Martin (Pl.’s Opp’n 7.) - 17 - He claims that by (Id.) 07cv0598 BTM (RBB) The present case is similar to Rhodes v. Robinson, 408 F.3d 1 2 559. 3 “completely destroyed” his typewriter, and also seized his CD 4 player and twelve compact discs, in retaliation for grievances 5 that he filed. 6 administrative remedies, Rhodes filed a civil rights complaint in 7 federal court. 8 complaint on the ground that the plaintiff would be unable to show 9 a chilling of his First Amendment rights, due to the fact that he 10 filed numerous complaints against staff and initiated litigation. 11 Id. at 566. 12 Rhodes alleged that correctional officers seized and Rhodes, 408 F.3d at 563-65. Id. at 565. After exhausting The defendants moved to dismiss the The Ninth Circuit disagreed. It held that Rhodes’s 13 allegations were sufficient to state a retaliation claim; Rhodes 14 did “not have to demonstrate that his speech was ‘actually 15 inhibited or suppressed.’” 16 it adopted the defendants’ view, it would create a “perverse” 17 situation where a prisoner was required to exhaust administrative 18 remedies before filing suit in federal court to vindicate his 19 rights, yet by filing grievances to exhaust those remedies, the 20 prisoner would no longer be able to plead a claim for relief, 21 since he could not state that his speech was “chilled.” 22 Id. at 569. The court stated that if Id. Rhodes’s complaint had specifically alleged that the 23 defendants acted with intent to chill his First Amendment rights, 24 see id. at 566, but nevertheless, the court indicated that such an 25 allegation may not have been necessary: 26 27 28 If Rhodes had not alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm that is more than minimal will almost always have a chilling effect. Alleging harm and alleging the chilling effect would seem under the circumstances to be no more than a nicety. - 18 - 07cv0598 BTM (RBB) 1 2 Id. at 567-68 n.11 (citing Pratt, 65 F.3d at 807; Valandingham v. 3 Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989)). Here, Plaintiff’s Complaint is sufficient. 4 Martin alleges 5 that Hurtado and Bugarin seized his television without 6 justification and with the intent to retaliate against him for 7 exercising his First Amendment right to file a grievance against a 8 correctional officer. 9 concrete harm –- the confiscation of his television –- which is (Compl. 3-4.) Thus, he has alleged a 10 more than minimal. The seizure of an inmate’s personal property 11 is the type of action that would chill the exercise of his First 12 Amendment rights. 13 2008 U.S. Dist. LEXIS 27523, at *18-19 (E.D. Wash. Mar. 21, 2008) 14 (denying summary judgment and finding plaintiff sufficiently 15 raised material issue of fact as to chilling effect where 16 plaintiff had to perform extra duty and his property was 17 confiscated in alleged retaliation because a jury could find that 18 those consequences would chill the speech of a reasonable person); 19 Rayford v. Omura, 400 F. Supp. 2d 1223, 1230-31 (D. Haw. 2005) 20 (discussing Rhodes and stating that a plaintiff can recover for 21 retaliation by proving either that he was actually harmed or that 22 the defendant’s actions would chill a person of ordinary firmness 23 from speaking against defendant). 24 concludes that Plaintiff has alleged all necessary elements to 25 state a cause of action for retaliation, and Defendants Hurtado 26 and Bugarin’s Motion to Dismiss is DENIED on this ground. 27 // 28 // See Entler v. Bolinger, No. CV-05-5122-FVS, - 19 - For these reasons, the Court 07cv0598 BTM (RBB) 1 2. Defendant Aguirre 2 Defendant Aguirre is not named in count one of the Complaint, 3 and his conduct is only set forth in count two, which describes 4 Plaintiff’s claim as a due process violation. 5 Regardless of where they are located in the Complaint, the Court 6 will construe Martin’s allegations against Aguirre as also 7 attempting to allege a First Amendment retaliation claim. 8 9 (Compl. 3-6.) Nevertheless, Defendant Aguirre asserts that the Complaint fails to state a First Amendment retaliation claim against him 10 because Martin cannot recover under § 1983 on a theory of 11 supervisory liability, and there are no allegations that Aguirre 12 participated in the allegedly retaliatory conduct. 13 P. & A. 7-8.) 14 because his Complaint alleges that Aguirre knew the other 15 Defendants acted with retaliatory intent, but he failed to 16 intervene, and therefore, Defendant Aguirre became complicit in 17 the retaliation. 18 (Defs.’ Mem. Plaintiff argues this claim should not be dismissed (Pl.’s Opp’n 10.) Under section 1983 of the Civil Rights Act, a defendant 19 cannot be held liable under a respondeat superior theory. 20 v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). 21 “[a]lthough there is no pure respondeat superior liability under § 22 1983, a supervisor is liable for the constitutional violations of 23 subordinates ‘if the supervisor participated in or directed the 24 violations, or knew of the violations and failed to act to prevent 25 them.’” 26 (quoting Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)); see 27 also King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987) (stating 28 that state officials may be liable under § 1983 if “they play an Monell But Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) - 20 - 07cv0598 BTM (RBB) 1 affirmative part in the alleged deprivation of constitutional 2 rights[]”). 3 facilitate it, approve it, condone it, or turn a blind eye for 4 fear of what [he] might see.” 5 (8th Cir. 1994) (quoting Jones v. City of Chicago, 856 F.2d 985, 6 992 (7th Cir. 1988)). “The supervisor must know about the conduct and Ripson v. Alles, 21 F.3d 805, 809 Defendant Aguirre argues that Plaintiff fails to state a 7 8 claim against him because Martin alleges liability based only on 9 Aguirre’s position as a supervisor: [T]here are no allegations that Defendant Aguirre witnessed or participated in the alleged viewing of Plaintiff’s confidential correspondence, or the alleged resultant retaliatory act of confiscating Plaintiff’s television. Rather, the Complaint specifically alleges Defendant Aguirre examined the television set and found it was tampered with, thereby justifying its confiscation. 10 11 12 13 14 15 (Defs.’ Mem. P. & A. 7.) The Complaint alleges that Defendant Aguirre is a 16 17 Correctional Sergeant assigned to the Receiving and Release Unit 18 at Calipatria. 19 grievance complaining of the retaliatory actions of Defendants 20 Hurtado and Bugarin, Plaintiff was interviewed by Defendant 21 Aguirre for the first-level administrative response. 22 “Defendant Aguirre denied plaintiff’s inmate appeal stating [sic] 23 that he had personally inspected plaintiff’s television and he 24 noticed that the glue seals were tampered with.” 25 Martin alleges that Defendant Aguirre “encourage[d], directed, 26 ratified, and knowingly acquiesed [sic] in the actions of 27 defendants Hurtado and Bugarin . . . .” 28 // (Compl. 2, 5.) When Martin filed an inmate - 21 - (Id. at 5.) (Id. at 5-6.) (Id. at 6.) 07cv0598 BTM (RBB) Because Plaintiff is proceeding pro se, the Court must 1 2 construe his Complaint broadly, accepting as true all factual 3 allegations and reasonable inferences to be drawn from them. 4 Cholla Ready Mix, 382 F.3d at 973 (citing Karam, 352 F.3d at 5 1192). 6 Martin, the Court finds that the Complaint sufficiently alleges a 7 First Amendment retaliation claim against Defendant Aguirre. 8 Complaint states that Aguirre knew Hurtado and Bugarin seized 9 Plaintiff’s television with the intent to retaliate against him, See Viewing the allegations in a light most favorable to The 10 and Aguirre condoned that action by denying Martin’s grievance. 11 The Complaint alleges that Defendant Aguirre took personal action; 12 it does not attempt to hold Aguirre liable merely for his 13 supervisory position. 14 (9th Cir. 1992), abrogated on other grounds, Saucier v. Katz, 533 15 U.S. 194 (2201), (finding plaintiff sufficiently alleged personal 16 involvement where two prison officials reviewed and denied the 17 plaintiff’s inmate appeals complaining of a decision to transfer 18 him in deliberate indifference to his medical needs). 19 Defendant’s Motion to Dismiss a First Amendment retaliation claim 20 against Defendant Aguirre is DENIED. 21 C. 22 See Hamilton v. Endell, 981 F.2d 1062, 1067 Therefore, Plaintiff’s Fourteenth Amendment Due Process Claim In claim two of his Complaint, Martin asserts that he was 23 denied due process of law when Defendants Hurtado and Bugarin 24 seized his television without initiating a formal disciplinary 25 action against him, thereby denying Plaintiff the “minimal 26 disciplinary procedural due process protections” provided to state 27 inmates by California law. 28 Defendant Aguirre violated Plaintiff’s right to due process when (Compl. 5-6.) - 22 - He further alleges that 07cv0598 BTM (RBB) 1 he denied the inmate grievance Martin submitted to complain about 2 Hurtado and Bugarin’s actions. 3 that all three Defendants acted in concert. 4 (Id.) Plaintiff also contends (Id. at 6.) The Due Process Clause of the Fourteenth Amendment protects 5 prisoners from being deprived of life, liberty, or property 6 without due process of law. 7 (1974). 8 that he has a protected liberty or property interest at stake. 9 Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Wolff v. McDonnell, 418 U.S. 539, 556 To invoke the Due Process Clause, Martin must establish This liberty 10 interest may arise from the Constitution or from state laws or 11 policies. 12 process rules are meant to protect persons not from the 13 deprivation, but from the mistaken or unjustified deprivation of 14 life, liberty, or property.” 15 (1978). 16 Id.; Sandin, 515 U.S. at 483-84. “Procedural due Carey v. Piphus, 435 U.S. 247, 259 A plaintiff presenting a procedural due process claim must 17 allege two elements: (1) the plaintiff had “a liberty or property 18 interest which has been interfered with by the State . . .” and 19 (2) the procedures employed to deprive the plaintiff of liberty or 20 property were constitutionally insufficient. 21 Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citation omitted); 22 see also Ramirez v. Galaza, 334 F.3d 850, 860-61 (9th Cir. 2003); 23 Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000). Kentucky Dep’t of 24 1. Deprivation of Liberty Interest 25 Defendants move to dismiss Plaintiff’s due process claim 26 because they assert that Martin does not have a liberty interest 27 in an administrative grievance procedure. 28 Defs.’ Reply 5-6.) (Defs.’ Mem. P. & A. 8; They argue, “Plaintiff does not have a due - 23 - 07cv0598 BTM (RBB) 1 process right to file an inmate grievance and, as such, cannot 2 maintain a Due Process claim against Defendant Aguirre for denying 3 his inmate grievance.” 4 (Defs.’ Mem. P. & A. 8.) Plaintiff contends he has a liberty interest in a grievance 5 procedure, which is established by the California Code of 6 Regulations. 7 Martin provides that any inmate or parolee under the jurisdiction 8 of the California Department of Corrections “may appeal any 9 departmental decision, action, condition, or policy which they can (Pl.’s Opp’n 11.) The specific regulation cited by 10 demonstrate as having an adverse effect upon their welfare.” 11 Code Regs. tit. 15, § 3084.1(a) (2008); (see Pl.’s Opp’n 11.) 12 Cal. “While a violation of a state-created liberty interest can 13 amount to a violation of the Constitution, not every violation of 14 state law or state-mandated procedures is a violation of the 15 Constitution.” 16 1993) (citations omitted). 17 California Code of Regulations provides a procedure for inmates to 18 assert their grievances does not, in itself, create a federally 19 protected liberty interest. 20 prescribed certain procedures does not mean that the procedures 21 thereby acquire a federal constitutional dimension.” 22 Vruno v. Schwarzwalder, 600 F.2d 124, 130-31 (8th Cir. 23 (1979)(internal quotations omitted)). 24 for the processing of inmate complaints and the disciplining of 25 inmates do not create protected liberty interests that implicate 26 the protections of the Fourteenth Amendment. 27 De Robertis, 568 F. Supp. 8, 10 (N.D Ill. 1982)). 28 grievance procedure is a procedural right only; . . . it does not Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. Accordingly, the fact that the “The simple fact that state law - 24 - Id. (quoting State-created procedures Id. (citing Azeez v. “‘A prison 07cv0598 BTM (RBB) 1 give rise to a protected liberty interest . . . .’” Id. 2 Azeez v. De Roberts, 568 F. Supp. at 10). 3 (quoting The Ninth Circuit has held that inmates have “no legitimate 4 claim of entitlement to a grievance procedure.” Mann v. Adams, 5 855 F.2d 639, 640 (9th Cir. 1988)(order on rehearing). 6 conclusion has also been consistently reached in other circuits: 7 “The courts of appeals that have confronted the issue are in 8 agreement that the existence of a prison grievance procedures 9 confers no liberty interest on a prisoner.” This Massey v. Helman, 259 10 F.3d 641, 647 (7th Cir. 2001) (discussing cases from the Fourth, 11 Seventh, Eighth, and Ninth Circuits). 12 have an entitlement to a specific grievance procedure, he cannot 13 state a claim under § 1983 based on any alleged deficiencies in 14 the processing of his grievance by Defendant Aguirre. 15 v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)(dismissing inmate’s 16 claim that “disciplinary and appeals boards denied his request to 17 examine adverse witnesses in violation of his Due Process 18 rights[]”. 19 television was seized without the initiation of formal 20 disciplinary procedures. 21 Because Plaintiff does not See Ramirez The same is true for Plaintiff’s claim that his (See Compl. 5.) Under the framework established by the Supreme Court in 22 Sandin v. Connor, 515 U.S. at 484, Plaintiff can state a 23 cognizable due process claim only by alleging that state action 24 “restrains a state-created liberty interest in some ‘unexpected 25 manner[]’” or imposed an “‘atypical and significant hardship . . . 26 in relation to the ordinary incidents of prison life.’” 27 334 F.3d at 860 (quoting Sandin, 515 U.S. at 483-84). 28 Court has explained that “[t]hese [state-created liberty] - 25 - Ramirez, The Supreme 07cv0598 BTM (RBB) 1 interests will be generally limited to freedom from restraint[,]” 2 for example, the transfer from a prison to a mental hospital or 3 the involuntary administration of psychotropic medications Sandin, 4 515 U.S. at 484 (citing Vitek v. Jones, 445 U.S. 480, 493 (1980); 5 Washington v. Harper, 494 U.S. 210, 221 (1990)). 6 Plaintiff’s Complaint fails to state a procedural due process 7 claim because the deprivation of his television does not pose an 8 “atypical and significant hardship” when compared to “the ordinary 9 incidents of prison life.” See id. Similar deprivations have 10 been found not to impose undue hardship on prisoners. See, e.g., 11 Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999) (finding 12 prison policy that did not permit inmates to have hobby materials 13 in their cells did not impose atypical, significant deprivation 14 under Sandin); Lyon v. Farrier, 730 F.2d 525, 526-27 (8th Cir. 15 1984) (finding no due process violation where a painting belonging 16 to another inmate was confiscated and destroyed because prison 17 regulations did not allow inmate to possess another’s property). 18 Plaintiff has not alleged facts sufficient to establish “a 19 dramatic departure from the basic conditions” of imprisonment. 20 See Sandin, 515 U.S. at 485. 21 for violation of his right to procedural due process.2 Thus, Martin fails to state a claim 22 2 23 24 25 26 27 28 It is not clear whether Plaintiff attempts to state a claim for violation of substantive due process, but to the extent he does, his allegations are similarly insufficient. Whereas procedural due process requires that the state utilize certain procedures before depriving a person of liberty or property, substantive due process imposes limits on what the state can do, regardless of the procedures used. Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir. 1991) (citations omitted). A plaintiff may assert a substantive due process claim by alleging either (1) the deprivation of an identified liberty or property interest, or (2) state conduct which “shocks the conscience.” Id. (citations omitted). Martin fails to establish a protected liberty or property interest that can support a due process claim. He also fails to establish that the confiscation of his television “shocks the conscience.” - 26 - 07cv0598 BTM (RBB) 1 2. Deprivation of Property Interest 2 To the extent that Martin’s Complaint attempts to state a 3 claim for the deprivation of property (i.e. his television) 4 without due process of law, his claim also fails. 5 deprivation of property resulted from the unpredictable negligent 6 acts of state agents, the availability of an adequate state 7 postdeprivation remedy satisfie[s] the requirement of due 8 process.” 9 (citing Parratt v. Taylor, 451 U.S. 527, 538 (1981)). “[W]here Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989) This rule Id. at 805- 10 also applies to “intentional, unauthorized actions.” 11 06 (citing Hudson v. Palmer, 468 U.S. 517, 530-33 (1984)). 12 Martin’s Complaint asserts that Defendants Hurtado and 13 Burgarin acted contrary to established policies when they seized 14 his television, and Defendant Aguirre also violated established 15 procedures by condoning their actions and denying Plaintiff’s 16 grievance. 17 actions were unauthorized, rather than taken pursuant to 18 established policies, Martin could only state a claim for 19 deprivation of property if he alleged there were no state 20 postdeprivation remedies available to redress the harm. 21 result is the same whether the deprivation of property is 22 negligent or intentional, so long as adequate postdeprivation 23 remedies are available. 24 also Parratt, 451 U.S. at 543 (finding failure to state a claim 25 where there was no allegation that postdeprivation procedures were 26 inadequate); Copeland v. Machulis, 57 F.3d 476, 479-80 (6th Cir. 27 1995) (same). 28 California provides a postdeprivation remedy which the Ninth (See Compl. 3-6.) Because he asserts that Defendants’ The Hudson v. Palmer, 468 U.S. at 5336; see Plaintiff does not make that allegation. - 27 - Indeed, 07cv0598 BTM (RBB) 1 Circuit has previously found to be adequate. Barnett v. Centoni, 2 31 F.3d 813, 816-17 (9th Cir. 1994)(citing Cal. Gov’t Code §§ 810- 3 895). 4 taking of property without due process of law. Accordingly, the Complaint fails to state a claim for the For all these reasons, Plaintiff’s Complaint fails to state a 5 6 claim for deprivation of due process. 7 Dismiss the due process claim alleged in count two of the 8 Complaint is GRANTED without leave to amend. 9 clear that the deficiencies of the complaint could not be cured by 10 amendment.” Defendants’ Motion to It is “absolutely Noll v. Carlson, 809 F.2d at 1447. IV. CONCLUSION 11 The Court finds that Plaintiff has alleged enough facts to 12 13 state a claim for retaliation under the First Amendment against 14 Defendants Hurtado, Bugarin, and Aguirre, but his Complaint fails 15 to state a due process claim against any Defendant. 16 Defendants’ Motion to Dismiss is GRANTED IN PART and DENIED IN 17 PART. 18 his Complaint for retaliation against Defendants Hurtado and 19 Bugarin. 20 Complaint is DISMISSED against all Defendants. 21 claim against Defendant Aguirre alleged in claim two may also 22 proceed. 23 24 Accordingly, Plaintiff will be permitted to proceed only on claim one of The due process violation alleged in claim two of the The retaliation IT IS SO ORDERED. DATED: September 3, 2008 25 26 27 Honorable Barry Ted Moskowitz United States District Judge 28 - 28 - 07cv0598 BTM (RBB)
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