(PC) Barry Vance v. Pasillas et al, No. 1:2010cv00157 - Document 8 (E.D. Cal. 2010)

Court Description: FINDINGS And RECOMMENDATIONS Recommending This Action Be Dismissed For Failure To State A Claim 1 , signed by Magistrate Judge Jennifer L. Thurston on 11/6/2010. The Court RECOMMENDS that: This action be dismissed, with prejudice, for failure to st ate a cognizable claim. This dismissal count as a strike pursuant to 28 U.S.C. 1915(g). The Clerk of the Court be directed to enter judgment and close this case. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 12/2/2010. (Fahrney, E)
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(PC) Barry Vance v. Pasillas et al Doc. 8 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY VANCE, 12 Plaintiff, 13 14 Case No. 1:10-cv-00157 LJO JLT (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM vs. JESSE PASILLAS, et al., (Doc. 1) 15 Defendants. / 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action 18 pursuant to 42 U.S.C. § 1983. This proceeding was referred to the Magistrate Judge in accordance with 19 28 U.S.C. § 636(b)(1) and Local Rule 302. Pending before the Court is Plaintiff’s complaint filed 20 February 1, 2010. 21 I. SCREENING 22 A. 23 The Court is required to review a case filed in forma pauperis. 28 U.S.C. § 1915(A)(a). The 24 Court must review the complaint and dismiss the action if it is frivolous or malicious, fails to state a 25 claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from 26 such relief. 28 U.S.C. § 1915 (e)(2). If the Court determines the complaint fails to state a claim, leave 27 to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. 28 Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc). Screening Requirement 1 Dockets.Justia.com 1 B. 2 The Civil Rights Act under which this action was filed provides as follows: 3 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 4 5 6 Section 1983 42 U.S.C. § 1983. 7 To plead a § 1983 violation, the plaintiff must allege facts from which it may be inferred that (1) 8 plaintiff was deprived of a federal right, and (2) the person who deprived plaintiff of that right acted 9 under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Collins v. Womancare, 878 F.2d 1145, 10 1147 (9th Cir. 1989). To warrant relief under § 1983, the plaintiff must allege and show that the 11 defendants’ acts or omissions caused the deprivation of the plaintiff’s constitutionally protected rights. 12 Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1993). “A person deprives another of a constitutional right, 13 within the meaning of section 1983, if he does an affirmative act, participates in another’s affirmative 14 acts, or omits to perform an act which he is legally required to do that causes the deprivation of which 15 [the plaintiff complains].” Id. There must be an actual causal connection or link between the actions 16 of each defendant and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Dept. 17 of Social Services, 436 U.S. 658, 691-92 (1978) (citing Rizzo v. Goode, 423 U.S. 362, 370-71(1976)). 18 C. 19 Section 1983 complaints are governed by the notice pleading standard in Federal Rule of Civil 20 Rule 8(a) Procedure 8(a), which provides in relevant part that: 21 A pleading that states a claim for relief must contain: 22 (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; 23 24 (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and 25 (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. 26 27 The Federal Rules of Civil Procedure adopt a flexible pleading policy. Nevertheless, a complaint 28 must give fair notice and state the elements of the plaintiff’s claim plainly and succinctly. See Bell 2 1 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In other words, the plaintiff is required to give 2 the defendants fair notice of what constitutes the plaintiff’s claim and the grounds upon which it rests. 3 Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). Although a complaint 4 need not outline all the elements of a claim, there “must contain sufficient factual matter, accepted as 5 true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 173 L. 6 Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570). Vague and conclusory allegations are 7 insufficient to state a claim under § 1983. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 8 1982). 9 II. THE COMPLAINT 10 In his complaint, Plaintiff identifies Pasillas, Morales, Wan, and John Does 1-10 as defendants 11 to this action. Plaintiff alleges the following. On March 19, 2007, Plaintiff was placed in administrative 12 segregation and given an Inmate Property Inventory Form to sign. Upon review, Plaintiff noticed that 13 a substantial amount of his personal belongings were not listed on the form. Plaintiff asked Defendant 14 Pasillas about the whereabouts of his property, and Defendant Pasillas indicated that he would look into 15 the matter. However, Plaintiff never heard from Defendant Pasillas thereafter. (Compl. at 7.) 16 Plaintiff subsequently filed an inmate appeal regarding his lost property. The appeal was denied 17 by Defendants Morales and Wan at the first level of review. Defendants Morales and Wan indicated that 18 Defendant Pasillas had been interviewed, and Defendant Pasillas claimed that Plaintiff’s property was 19 fully accounted for. Defendant Pasillas also stated that Plaintiff never complained that his property was 20 missing. (Compl. at 7, Ex. B.) Based on these allegations, Plaintiff appears to claim that Defendants 21 violated his rights under the Due Process Clause of the Fourteenth Amendment and seeks monetary 22 damages. (Compl. 3-7.) 23 III. DISCUSSION 24 A. 25 The Due Process Clause of the Fourteenth Amendment protects individuals from state 26 deprivations of life, liberty, or property without due process of law. With respect to a prisoner’s 27 property, the United States Supreme Court has held that “an unauthorized intentional deprivation of 28 property” by a prison official constitutes a violation of due process if a meaningful post-deprivation Lost Property 3 1 remedy for the loss is unavailable. Hudson v. Palmer, 468 U.S. 517, 533 (1984) (emphasis added). If, 2 however, a prison official merely acts negligently in losing a prisoner’s property, there is no due process 3 violation. See Daniels v. Williams, 474 U.S. 327, 328 (1986) (“[T]he Due Process Clause is simply not 4 implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or 5 property.”) (emphasis in the original). 6 Here, Plaintiff alleges that “[D]efendant Pasillas negligently inventoried and packed [P]laintiff’s 7 personal property.” (Compl. at 3.) Plaintiff also alleges that after being informed of the situation, 8 Defendant Pasillas failed to locate and return all missing property to Plaintiff. (Id. at 4, 6.) Because 9 these allegations, if proven true, at most demonstrate that Defendant Pasillas acted negligently with 10 respect to Plaintiff’s property, Plaintiff’s allegations fail to state a cognizable due process claim. See 11 Daniels, 474 U.S. at 328. 12 Even assuming that Defendant Pasillas intentionally deprived Plaintiff of his property, still 13 Plaintiff”s complaint fails to state a cognizable claim. There is no indication that Defendant Pasillas was 14 authorized to deprive Plaintiff of his belongings. Thus, under the Supreme Court’s decision in Hudson, 15 Defendant Pasillas’ actions constitute a violation of due process only if a meaningful post-deprivation 16 remedy for Plaintiff’s loss is unavailable. See Hudson, 468 U.S. at 533. Under these circumstances, 17 Plaintiff has a meaningful post-deprivation remedy. Plaintiff may file suit in state court pursuant to 18 California Government Code §§ 900, et seq., which provides a remedy for torts committed by public 19 employees. See Parratt v. Taylor, 451 U.S. 527, 539 (1981) (“[P]ost-depravation remedies made 20 available by the State can satisfy the Due Process Clause.”); Arnold v. Williams, No. CIV S-08-28886 21 DAD P, 2009 WL 3710522, at *3 (E.D. Cal. Oct. 28, 2009) (California Government Code §§ 900, et seq. 22 provide a sufficient post-deprivation remedy for the purposes of due process). 23 B. 24 Plaintiff alleges that Defendants Morales and Wan denied his inmate appeal, thereby depriving 25 him of his property. (Compl. at 5-5A.) Such allegations, however, are insufficient to demonstrate a 26 constitutional violation. In the Ninth Circuit, it is well-established that “inmates lack a separate 27 constitutional entitlement to a specific prison grievance procedure.” Therefore, when a prison official 28 denies, screens-out, or ignores an inmate’s appeal, the prison official does not deprive the inmate of any Inmate Appeals 4 1 constitutional right. See, e.g., Wright v. Shannon, No. CIV F-05-1485 LJO YNP PC, 2010 WL 445203, 2 at *5 (E.D. Cal. Feb. 2, 2010) (plaintiff’s allegation that prison officials denied or ignored his inmate 3 appeals failed to state a cognizable claim under the First Amendment); Walker v. Vazquez, No. CIV F- 4 09-0931 YNP PC, 2009 WL 5088788, at *6-7 (E.D. Cal. Dec. 17, 2009) (plaintiff’s allegation that prison 5 officials failed to timely process his inmate appeals failed to state a cognizable claim); Towner v. 6 Knowles, No. CIV S-08-2833 LKK EFB P, 2009 WL 4281999, at *2 (E.D. Cal. Nov. 20, 2009) 7 (plaintiff’s allegation that prison officials screened-out his inmate grievances without any basis failed 8 to show a deprivation of federal rights). Accordingly, Plaintiff’s allegation that Defendants Morales and 9 Wan deprived him of his property by denying his inmate appeal fails to state a cognizable claim. 10 C. 11 Lastly, Plaintiff alleges that Defendant Wan and John Does 1-10 failed to properly supervise and 12 train Defendants Pasillas and Morales. (Compl. at 7-7A.) Generally, supervisory personnel are not 13 liable under § 1983 for the actions of their employees under a theory of respondeat superior. Monell, 14 436 U.S. at 691. Therefore, when a named defendant holds a supervisory position, the causal link 15 between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 16 607 F.2d 858, 862 (9th Cir. 1979). In other words,“[u]nder § 1983 a supervisor is only liable for his own 17 acts. Where the constitutional violations were largely committed by subordinates the supervisor is liable 18 only if he participated in or directed the violations.” Humphries v. County of Los Angeles, 554 F.3d 19 1170, 1202 (9th Cir. 2009). Failure to Supervise and Train 20 A supervisor’s failure to train subordinates may give rise to individual liability under § 1983 21 where the failure amounts to deliberate indifference to the rights of persons whom the subordinates are 22 likely to come into contact. See Canell v. Lightner, 143, F.3d 1210, 1213-14 (9th Cir. 1998). To impose 23 liability under this theory, a plaintiff must demonstrate that the subordinate’s training was inadequate, 24 that the inadequate training was a deliberate choice on the part of the supervisor, and that the inadequate 25 training caused a constitutional violation. Id. at 1214. See also City of Canton v. Harris, 489 U.S. 378, 26 391 (1989); Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001). 27 Here, as discussed above, Defendants Pasillas and Morales did not violate Plaintiff’s 28 constitutional rights. Therefore, it follows that the supervision and training of Defendants Pasillas and 5 1 Morales by Defendants Wan and John Does 1-10 were not constitutionally deficient. Accordingly, 2 Plaintiff’s allegations in this regard fail to state a cognizable claim. 3 D. 4 The Court declines to provide Plaintiff with leave to amend. “Under Ninth Circuit case law, 5 district court are only required to grant leave to amend if a complaint can possibly be saved. Courts are 6 not required to grant leave to amend if a complaint lacks merit entirely.” Lopez, 203 F.3d at 1129. Here, 7 Plaintiff’s claims regarding his lost property and inmate appeals plainly lack legal merit. Plaintiff’s 8 claims therefore cannot be saved by amending the complaint to include additional facts. 9 IV. Leave to Amend CONCLUSION 10 Accordingly, for the reasons set forth above, it is HEREBY RECOMMENDED that: 11 1. This action be dismissed, with prejudice, for failure to state a cognizable claim; 12 2. This dismissal count as a strike pursuant to 28 U.S.C. § 1915(g); and 13 3. The Clerk of the Court be directed to enter judgment and close this case. 14 These findings and recommendations are submitted to the United States District Judge assigned 15 to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 16 Practice for the United States District Court, Eastern District of California. Within twenty-one days after 17 being served with these findings and recommendations, Plaintiff may file written objections with the 18 court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 19 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 20 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 22 IT IS SO ORDERED. 23 Dated: November 6, 2010 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 6