(PC) Brown v. Whitten, et al., No. 2:2014cv00848 - Document 21 (E.D. Cal. 2014)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/14/2014 VACATING the 10/15/2014 findings and recommendations 17 ; and RECOMMENDING that this action be dismissed. Referred to Judge John A. Mendez; Objections due within 14 days. (Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL K. BROWN, 12 No. 2: 14-cv-0848 JAM KJN P Plaintiff, 13 v. 14 WHITTEN, et al., 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On August 13, 2014, the undersigned granted plaintiff thirty days to file an 19 amended complaint. (ECF No. 16.) Thirty days passed and plaintiff did not file an amended 20 complaint. Accordingly, on October 15, 2014, the undersigned recommended that this action be 21 dismissed. (ECF No. 17.) 22 On September 9, 2014, plaintiff filed an amended complaint. (ECF No. 20.) However, 23 plaintiff put the wrong case number on the amended complaint. For that reason, the court only 24 recently discovered plaintiff’s amended complaint. Accordingly, the October 15, 2015 findings 25 and recommendations are vacated. After reviewing the record, the undersigned finds that 26 plaintiff’s amended complaint does not state a potentially colorable claim for relief and 27 recommends that this action be dismissed. 28 //// 1 1 2 Named as defendants are Correctional Officer Whitten, Warden Singh, Warden Duffy and Correctional Counselor Sankovich. 3 Plaintiff alleges that on December 11, 2011, he was transferred from the California 4 Medical Facility (“CMF”) to Deuel Vocational Institution (“DVI”). Plaintiff alleges that prior to 5 this transfer, defendant Whitten stole some of plaintiff’s personal property including his 6 television, tennis shoes, shorts, etc. Plaintiff alleges that defendants Singh, Duffy and Sankovich 7 failed to properly process his administrative grievances challenging the wrongful confiscation of 8 his property. 9 Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 10 728, 730 (9th Cir. 1974). However, while an authorized, intentional deprivation of property is 11 actionable under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984) 12 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982)); Quick v. Jones, 754 F.2d 13 1521, 1524 (9th Cir. 1985), “[a]n unauthorized intentional deprivation of property by a state 14 employee does not constitute a violation of the procedural requirements of the Due Process 15 Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is 16 available,” Hudson, 468 U.S. at 533. California Law provides an adequate post-deprivation 17 remedy for any property deprivations. See Cal. Gov't Code §§ 810–95; Barnett v. Centoni, 31 18 F.3d 813, 816–17 (9th Cir. 1994). 19 While plaintiff alleges that the deprivation of his property was intentional, he does not 20 allege that it was authorized. Instead, plaintiff alleges that the confiscation of his property was 21 unauthorized. For these reasons, plaintiff’s claims challenging the deprivation of his property 22 should be dismissed.1 23 24 25 26 27 1 Attached as an exhibit to the amended complaint is a letter dated February 7, 2013, addressed to plaintiff from the Victim Compensation and Government Compensation Board denying his claim as untimely because it was filed more than one year after the incident. (ECF No. 20 at 31.) Also attached as an exhibit is another letter to plaintiff from the Victim Compensation and Government Compensation Board dated March 6, 2013. (Id. at 33.) This letter informs plaintiff that as of November 1, 2004, inmates are not required to exhaust administrative remedies prior to submitting claims to the Board. (Id.) Plaintiff had an adequate post-deprivation remedy, regardless of his dissatisfaction with that remedy. 28 2 1 To the extent plaintiff alleges that defendants that defendants Singh, Duffy and Sankovich 2 violated plaintiff’s due process rights by failing to properly process his administrative grievances, 3 these claims are without merit. Inmates have no constitutional right to a prison administrative 4 appeal or grievance system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. 5 Adams, 855 F.2d 639, 640 (9th Cir. 1988). 6 Plaintiff made similar allegations in his original complaint. (ECF No. 1.) The 7 undersigned advised plaintiff of the legal standards, set forth above, in the order screening the 8 original complaint. (ECF No. 10.) It does not appear that plaintiff can cure these pleading 9 defects. 10 11 Accordingly, IT IS HEREBY ORDERED that the October 15, 2014 findings and recommendations are vacated; and 12 IT IS HEREBY RECOMMENDED that this action be dismissed. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, plaintiff may file written objections 16 with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 18 failure to file objections within the specified time may waive the right to appeal the District 19 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 Dated: November 14, 2014 21 22 Br848.56 23 24 25 26 27 28 3
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