(PC)Davenport v. Ponce et al, No. 2:2014cv00405 - Document 8 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 6/26/14 RECOMMENDING that this action be dismissed with prejudice for failure to state a claim. Referred to Judge Troy L. Nunley. Objections due within 14 days. (Manzer, C)

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(PC)Davenport v. Ponce 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 JAMES BOBBY DAVENPORT, III, 12 13 14 15 16 17 18 19 No. 2:14-CV-0405-TLN-CMK-P Plaintiff, vs. FINDINGS AND RECOMMENDATIONS PONCE, et al., Defendants. / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1). The court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 26 This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 1 Dockets.Justia.com 1 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied 2 if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon 3 which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must 4 allege with at least some degree of particularity overt acts by specific defendants which support 5 the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 6 impossible for the court to conduct the screening required by law when the allegations are vague 7 and conclusory. 8 9 I. PLAINTIFF’S ALLEGATIONS 10 Plaintiff names as defendants officers Ponce and Medina. According to plaintiff: 11 I was sent to Ad-Seg on 2-10-12. On 2-11-12, c/o Ponce brought me my property envelope slip. A lot of my property wasn’t on there. I informed him of this. I appeal it on 2-19-12. CCII Medina informed me that he received me appeal on 2-27-12 but never sent me a log number. I appeal him 30 1 the warden’s office. He sent it to the captain on B-yard which was the yard I was on. During that process all my supporting documents got lost. 12 13 14 15 Plaintiff seeks to be “. . .reimbursed for the loss of my personal property. . . .” 16 17 18 II. DISCUSSION Where a prisoner alleges the deprivation of a liberty or property interest caused by 19 the random and unauthorized action of a prison official, there is no claim cognizable under 42 20 U.S.C. § 1983 if the state provides an adequate post-deprivation remedy. See Zinermon v. 21 Burch, 494 U.S. 113, 129-32 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984). A state’s 22 post-deprivation remedy may be adequate even though it does not provide relief identical to that 23 available under § 1983. See Hudson, 468 U.S. at 531 n.11. A due process claim is not barred, 24 however, where the deprivation is foreseeable and the state can therefore be reasonably expected 25 to make pre-deprivation process available. See Zinermon, 494 U.S. at 136-39. An available 26 state common law tort claim procedure to recover the value of property is an adequate remedy. 2 1 See id. at 128-29. Here, California’s tort claim process is an adequate remedy for plaintiff to be 2 reimbursed the value of his lost property. 3 In addition to a due process claim based on the loss of his property, plaintiff also 4 names as a defendant Medina, who appears to only have been involved in processing plaintiff’s 5 inmate grievances. Prisoners have no stand-alone due process rights related to the administrative 6 grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v. 7 Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no liberty interest entitling 8 inmates to a specific grievance process). Because there is no right to any particular grievance 9 process, it is impossible for due process to have been violated by ignoring or failing to properly 10 process grievances. Numerous district courts in this circuit have reached the same conclusion. 11 See Smith v. Calderon, 1999 WL 1051947 (N.D. Cal 1999) (finding that failure to properly 12 process grievances did not violate any constitutional right); Cage v. Cambra, 1996 WL 506863 13 (N.D. Cal. 1996) (concluding that prison officials’ failure to properly process and address 14 grievances does not support constitutional claim); James v. U.S. Marshal’s Service, 1995 WL 15 29580 (N.D. Cal. 1995) (dismissing complaint without leave to amend because failure to process 16 a grievance did not implicate a protected liberty interest); Murray v. Marshall, 1994 WL 245967 17 (N.D. Cal. 1994) (concluding that prisoner’s claim that grievance process failed to function 18 properly failed to state a claim under § 1983). 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 3 1 2 III. CONCLUSION Because it does not appear possible that the deficiencies identified herein can be 3 cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of 4 the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 5 6 Based on the foregoing, the undersigned recommends that this action be dismissed with prejudice for failure to state a claim. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court. Responses to objections shall be filed within 14 days after service of 11 objections. Failure to file objections within the specified time may waive the right to appeal. 12 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 16 DATED: June 26, 2014 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 4

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