Unpublished Disposition, 867 F.2d 613 (9th Cir. 1988)Annotate this Case
James E. SULT, Plaintiff-Appellant,v.Robert Glenn BORG, et al. Defendants-Appellees.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 19, 1988* .Decided Jan. 26, 1989.
Before MERRILL, REINHARDT, and CYNTHIA HOLCOMB HALL, Circuit Judges.
James E. Sult, a California state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action as frivolous pursuant to 28 U.S.C. § 1915(d). We affirm.
In his complaint, Sult alleged that certain California state prison officials were responsible for the loss of his hobby tools, thereby depriving him of his due process rights. However, the existence of an adequate post-deprivation state remedy to redress the negligent or intentional loss of property by state employees precludes a finding that an individual's due process rights have been violated. Hudson v. Palmer, 468 U.S. 517, 532-33 (1984); Parratt v. Taylor, 451 U.S. 527, 539-44 (1980). Here, California law does provide for an adequate post-deprivation remedy against public officials. See Cal.Govt.Code Sec. 900 et seq. Sult does not allege that he has sought to avail himself of his state law remedies.
Sult contends that the district court should have provided him with an opportunity to amend his complaint to cure its deficiencies. When dismissing a pro se complaint, the district court should explain to the pro se complainant the deficiencies of his complaint and allow him the opportunity to amend it. Noll v. Carson, 809 F.2d 1446, 1449 (9th Cir. 1987). However, if it "is absolutely clear that the deficiencies of the complaint could not be cured by amendment," the district court may dismiss the action. Hernandez v. Denton, Nos. 86-2139, 87-1693/1694, slip op. at 14457-58 (9th Cir. Nov. 23, 1988) (citation omitted). Sult has never claimed, either in the district court or here, that he initiated proceedings in the California court system.1 Furthermore, the Magistrate's Findings and Recommendations may serve in this case as notice to Sult of the deficiencies in his complaint. We cannot say that the district court erred in dismissing Sult's complaint.
The panel unamimously finds this case suitable for decision without oral argument. Fed.R.App. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
In his "Objections to Magistrate's Findings and Recommendations," Sult stated that he could demonstrate that he had filed a claim with the State Board of Control, which the Board subsequently denied. He asserted that this fulfills the requirement of exhausting his state law remedies. However, California law also provides for the institution of court proceedings once the Board has denied his claim. On appeal, Sult asserts without explanation that it would be futile to pursue his state court remedies. His belated conclusory assertion is insufficient to warrant reversal