Unpublished Disposition, 867 F.2d 614 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 867 F.2d 614 (9th Cir. 1989)

Abraham T. YANG, Plaintiff-Appellant,v.James ROWLAND, et al., Defendants-Appellees.

No. 88-6048.

United States Court of Appeals, Ninth Circuit.

Submitted*  Jan. 10, 1989.Decided Jan. 23, 1989.

Before WALLACE, CANBY and TROTT, Circuit Judges.


MEMORANDUM** 

Appellant Abraham T. Yang appeals the district court's dismissal of his civil rights action. Yang, a state prisoner, received fifty dollars ($50.00) for his personal fund trust account. The California prison authorities charged against the $50.00 various postage and other expenses attributable to the filing of certain legal actions by Yang several months previously. The charges exhausted the $50.00.

Yang's complaint, and his argument on appeal, is based on his allegation that his account remained without funds for more than 30 days after the expenses were incurred. He relies on 15 Cal.Admin.Code Secs. 3162, 3165(d), to support his contention that he could not thereafter properly be charged for the expenses. He contends that this violation of regulations amounts to a violation of due process and to cruel and unusual punishment under the federal Constitution.

Yang's complaint fails to state a federal claim cognizable under 28 U.S.C. § 1983.1  A violation of state regulation does not in itself raise a federal question. To the extent that Yang's complaint may be interpreted as alleging a taking of property, it fails to state a claim for violation of due process of law because state post-deprivation procedures may be utilized for redress if any is due. Parratt v. Taylor, 451 U.S. 527 (1981). Yang's claim that imposing the charges for legal expenses constitutes cruel and unusual punishment is frivolous. Whether or not the imposition of such charges was proper under state regulations, their exaction cannot possibly amount to the "unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 172 (1976) (plurality opinion), that the Eighth Amendment was designed to protect against. See also Whitley v. Albers, 475 U.S. 312, 319 (1986).

Because Yang's claims of violation of due process and infliction of cruel and unusual punishment are wholly without merit, the district court was correct in dismissing the action. Its judgment is

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.Aopp.P. 34(a); Circuit Rule 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

 1

Yang also asserts a claim under 42 U.S.C. § 1981, but he fails to allege or argue intentional discrimination on the basis of such a characteristic as race, which is required to state a claim under that statute. Atonio v. Wards Cove Packing Co., 768 F.2d 1120, 1125 (9th Cir. 1985)