(PC) Hill v. Kennedy, No. 2:2019cv02148 - Document 7 (E.D. Cal. 2020)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/8/2020 GRANTING plaintiff's 2 application to proceed ifp and RECOMMENDING plaintiff's 1 complaint be dismissed without leave to amend for failure to state a cognizable claim. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

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(PC) Hill v. Kennedy Doc. 7 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CYMEYON HILL, 11 12 13 No. 2:19-cv-2148-MCE-EFB P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS L. MONTOYA KENNEDY, 14 Defendant. 15 16 17 Plaintiff, a civil detainee, proceeds without counsel in this action brought pursuant to 42 U.S.C. § 1983. He has filed an application for leave to proceed in forma pauperis. 18 Application for Leave to Proceed in Forma Pauperis 19 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 20 § 1915(a). Accordingly, the request to proceed in forma pauperis is granted. Because plaintiff is 21 a civil detainee, and therefore not a prisoner within the meaning of the Prison Litigation Reform 22 Act, he is not required to pay the court’s filing fee under 28 U.S.C. § 1915A. Page v. Torrey, 201 23 F.3d 1136, 1140 (9th Cir. 2000). Screening Requirement 24 25 Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if 26 it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to 27 state a claim on which relief may be granted, or seeks monetary relief against an immune 28 defendant. 1 Dockets.Justia.com 1 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 2 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 3 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 4 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 6 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 7 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 8 U.S. 662, 679 (2009). 9 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 10 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 11 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 12 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 13 678. 14 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 15 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 16 content that allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 18 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 19 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 20 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 21 Screening Order 22 Plaintiff’s allegations are not sufficient to survive screening. In short, he claims that 23 defendant Kennedy misappropriated funds from plaintiff’s inmate trust account. Any due process 24 claim based on the deprivation of plaintiff’s personal property, however, is not cognizable. Even 25 in the event of an intentional deprivation of property, there is no cognizable claim if “a 26 meaningful post-deprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 27 533 (1984). The U.S. Court of Appeals for the Ninth Circuit has held that California law 28 provides such a remedy for property deprivations by public officials. See Barnett v. Centoni, 31 2 1 F.3d 813, 816 (9th Cir. 1994). As there is no cognizable federal claim, the complaint cannot 2 survive screening and should be dismissed without further leave to amend. Plumeau v. School 3 Dist. # 40, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend appropriate where further 4 amendment would be futile). 5 6 7 8 9 Conclusion Accordingly, it is ORDERED that plaintiff’s application for leave to proceed in forma pauperis (ECF No. 2) is granted. Further, it is RECOMMENDED that plaintiff’s complaint (ECF No. 1) be DISMISSED without leave to amend for failure to state a cognizable claim. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 15 within the specified time may waive the right to appeal the District Court’s order. Turner v. 16 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: April 8, 2020. 18 19 20 21 22 23 24 25 26 27 28 3

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