Thomas v. Montgomery et al, No. 3:2018cv01835 - Document 3 (S.D. Cal. 2018)
Court Description: ORDER granting 2 Motion to Proceed In Forma Pauperis; and Dismissing Complaint for Failing to State a Claim. The Court: DIRECTS the Acting Secretary of the CDCR, or his designee, to collect from Plaintiffs prison trust account the $350 fi ling fee; DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, Acting Secretary; GRANTS Plaintiff forty- five (45) days leave from the date of this Order in which to file an Amended Complaint. If Plaintiff fails to file an Amended Complaint within the time provided, the Court will enter a final Order dismissing this civil action. Signed by Judge Gonzalo P. Curiel on 10/25/18. (All non-registered users served via U.S. Mail Service & mailed to Ralph Diaz)(dlg)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ALBERT THOMAS, CDCR #E-88239, ORDER: Plaintiff, 13 14 Case No.: 3:18-cv-01835-GPC-JLB vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] 15 16 17 W. L. MONTGOMERY, et al. AND Defendants. 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND 28 U.S.C. § 1915A(b) 18 19 20 21 22 Albert Thomas (“Plaintiff”) is currently incarcerated at Pelican Bay State Prison in 23 Crescent City, California (“PBSP”). He is proceeding pro se, and has filed a civil rights 24 Complaint pursuant to 42 U.S.C. § 1983. (See Compl, ECF No. 1.) 25 Plaintiff claims the Wardens of Calipatria State Prison (“CAL”) and PBSP, 26 together with CAL correctional and California Department of Corrections and 27 Rehabilitation (“CDCR”) appeals officials, violated his due process rights during a 2015 28 disciplinary proceeding at CAL which resulted in his administrative segregation for 184 1 3:18-cv-01835-GPC-JLB 1 days and an adverse transfer to PBSP. (Id. at 1-6.) Plaintiff further claims several CAL 2 officials confiscated, destroyed, or lost his personal property by failing to properly 3 inventory and transfer it to PBSP, and CDCR appeals officials failed to provide him a 4 meaningful remedy for that loss. (Id. at 9-10.) He seeks $25,000 in general and punitive 5 damages against each Defendant, and “any other relief the court deems proper” to “deter 6 future conduct.” (Id. at 12.) 7 Plaintiff did not prepay the filing fee required by 28 U.S.C. § 1914(a) to commence 8 a civil action at the time he filed his Complaint; instead, he submitted a Certificate of 9 Funds and a certified copy of his CDCR Inmate Trust Account Statement Report (ECF 10 No. 2), which the Court construes as a Motion for Leave to Proceed In Forma Pauperis 11 (“IFP”) pursuant to 28 U.S.C. § 1915(a). 12 I. 13 Motion to Proceed In Forma Pauperis All parties instituting any civil action, suit or proceeding in a district court of the 14 United States, except an application for writ of habeas corpus, must pay a filing fee of 15 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 16 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 17 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 18 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 19 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 20 Bruce v. Samuels, __ S. Ct. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 21 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately 22 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 23 Cir. 2002). 24 /// 25 26 1 27 28 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:18-cv-01835-GPC-JLB 1 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 2 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 3 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 4 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 5 trust account statement, the Court assesses an initial payment of 20% of (a) the average 6 monthly deposits in the account for the past six months, or (b) the average monthly 7 balance in the account for the past six months, whichever is greater, unless the prisoner 8 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 9 custody of the prisoner then collects subsequent payments, assessed at 20% of the 10 preceding month’s income, in any month in which his account exceeds $10, and forwards 11 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 12 Bruce, 136 S. Ct. at 629. 13 In lieu of an IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 14 Statement Report, as well as a Certificate of Funds issued by a PBSP accounting official 15 which attests as to his balances and deposits over the 6-month period preceding the filing 16 of his Complaint. See ECF No. 2 at 1-3; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; 17 Andrews, 398 F.3d at 1119. These documents show Plaintiff had an average monthly 18 balance of $2.32, but no money deposited to his trust account for the 6-months preceding 19 the filing of this action, and no available money on the books at the time of filing. See 20 ECF No. 2 at 1-2. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 21 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 22 judgment for the reason that the prisoner has no assets and no means by which to pay the 23 initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 24 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP 25 case based solely on a “failure to pay ... due to the lack of funds available to him when 26 payment is ordered.”). 27 Therefore, the Court construes Plaintiff’s trust account statements as a Motion to 28 Proceed IFP (ECF No. 2), GRANTS him leave to proceed IFP, declines to “exact” any 3 3:18-cv-01835-GPC-JLB 1 initial filing fee because his trust account statement shows he “has no means to pay it,” 2 Bruce, 136 S. Ct. at 629, and directs the Acting Secretary of the California Department of 3 Corrections and Rehabilitation (“CDCR”) to collect the entire $350 balance of the filing 4 fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to 5 the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 6 II. Screening of Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 7 A. 8 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 9 Standard of Review answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 10 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 11 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 12 who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 13 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en 14 banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 15 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 16 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 17 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 18 680, 681 (7th Cir. 2012)). A complaint is “frivolous” if it “lacks an arguable basis either 19 in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). 20 “The standard for determining whether a plaintiff has failed to state a claim upon 21 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 22 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 23 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 24 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 25 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 26 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 27 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 28 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 4 3:18-cv-01835-GPC-JLB 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 2 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 3 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 4 relief [is] ... a context-specific task that requires the reviewing court to draw on its 5 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 6 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 7 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 8 (9th Cir. 2009). 9 B. 10 Factual Allegations On June 24, 2015, while he was incarcerated at CAL, Plaintiff was “placed in 11 administrative segregation” (“Ad-Seg”) pending a CDCR 115 investigation and 12 disciplinary hearing after a weapon was found inside a mattress in the cell he shared with 13 another inmate named Banks. (See Compl., ECF No. 1 at 4, 7.) Plaintiff claims Lt. 14 Coronado, the Senior Hearing Officer (“SHO”), refused to consider exculpatory evidence 15 during his disciplinary hearing, and both he and his cellmate were “found guilty of the 16 charge.” (Id. at 4-6.) As a result, Plaintiff claims he was “improperly” confined to Ad-Seg 17 for 184 days, and then transferred to PBSP, a “maximum security prison.” (Id. at 4.) 18 Plaintiff claims to have challenged his disciplinary conviction in a prison grievance 19 “that raised … procedural due process” violations, but Warden Montgomery, Associate 20 Warden Pollard, Lt. Coronado, Chief Appeals Officer Voong, and Lt. Beltran “recklessly 21 disregarded [his] rights” when they reviewed that grievance and denied it. (Id. at 5-6.) 22 Plaintiff further alleges Sgt. Garcia confiscated a pair of head phones as contraband 23 while he and Banks were asked to inventory their property on June 26, 2015. (Id. at 7.) 24 Plaintiff contends Garcia told him to “fill out a trust withdrawal form” so the headphones 25 could be sent home or donated, but Plaintiff “found out a month or so later” that Garcia 26 did not mail his headphones home and “kept them” instead. (Id.) Plaintiff claims he filed 27 a “602 (inmate grievance) for the missing property,” but Garcia “[e]ntered false 28 documentation into [his] appeals process … to make it seem as if [he] was lying.” (Id.) 5 3:18-cv-01835-GPC-JLB 1 After he was transferred to Corcoran in route to PBSP, Plaintiff claims Lt. Beltran 2 “called to tell [him] that he was going to partially grant [his] 602 and give [him] a new 3 TV,” but Plaintiff refused to sign the form Beltran provided for that purpose because 4 “signing would prohibit him from pursuit of the rest of his property 602.” (Id. at 8.) 5 Finally, Plaintiff claims that he arrived at PBSP on January 6, 2016, “with about 10 6 boxes of property,” but when it was released to him on April 4, 2016, there were only “2 7 ½ boxes.” (Id. at 8.) Upon receipt, Plaintiff discovered his clothing had been placed in 8 plastic bags with food condiments spilled on them, the boxes contained some items that 9 were not his, and his photos and shoes “looked as if they were dug out of the trash.” (Id.) 10 Plaintiff filed “another 602” at PBSP regarding the condition and loss of his property, but 11 it was denied during a “flawed grievance system” employed by Sgt. Davis, Warden 12 Ducart, and Chief Appeals Officer Voong. (Id. at 9-10.) 13 Based on these events, Plaintiff claims Defendants Montgomery, Beltran, 14 Coronado, Pollard, Ducart, Davis, Garcia, and Voong all deprived him of both his liberty 15 and property without due process and in violation of the Fourteenth Amendment. (Id. at 16 4-6, 7-10.) 17 C. 18 First, to the extent Plaintiff alleges Defendant Coronado violated his due process Disciplinary Proceedings 19 rights by failing to allow him to submit “favorable documentary evidence” during the 20 CAL disciplinary hearing which resulted in a 184-day Ad-Seg placement and his 21 subsequent transfer to PBSP, see Compl., ECF No. 1 at 4, he fails to state Fourteenth 22 Amendment claim upon which § 1983 relief can be granted. See 28 U.S.C. 23 § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). 24 The Fourteenth Amendment provides that “[n]o state shall ... deprive any person of 25 life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The 26 requirements of procedural due process apply only to the deprivation of interests 27 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of 28 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a 6 3:18-cv-01835-GPC-JLB 1 plaintiff] must generally allege ‘(1) a liberty or property interest protected by the 2 Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of 3 process.’” Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. 4 Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). But “[d]ue process ‘is a flexible 5 concept that varies with the particular situation.’” Shinault v. Hawks, 782 F.3d 1053, 6 1057 (9th Cir. 2015) (quoting Zinermon v. Burch, 494 U.S. 113, 127 (1990)). 7 A prisoner is entitled to certain due process protections when he is charged with a 8 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing 9 Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974)). “Such protections include the rights 10 to call witnesses, to present documentary evidence and to have a written statement by the 11 fact-finder as to the evidence relied upon and the reasons for the disciplinary action 12 taken.” Id. These procedural protections, however, “adhere only when the disciplinary 13 action implicates a protected liberty interest in some ‘unexpected matter’ or imposes an 14 ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of 15 prison life.’” Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)); Ramirez v. 16 Galaza, 334 F.3d 850, 860 (9th Cir. 2003). 17 Although the level of the hardship must be determined on a case-by-case basis, and 18 “[i]n Sandin’s wake the Courts of Appeals have not reached consistent conclusions for 19 identifying the baseline from which to measure what is atypical and significant in any 20 particular prison system,” Wilkinson v. Austin, 545 U.S. 209, 223 (2005), courts in the 21 Ninth Circuit look to: 22 23 24 25 1) whether the challenged condition ‘mirrored those conditions imposed upon inmates in administrative segregation and protective custody,’ and thus comported with the prison’s discretionary authority; 2) the duration of the condition, and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence. 26 Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87); see also Chappell v. 27 Mandeville, 706 F.3d 1052, 1064-65 (9th Cir. 2013). Only if the prisoner alleges facts 28 sufficient to show a protected liberty interest must courts next consider “whether the 7 3:18-cv-01835-GPC-JLB 1 procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334 F.3d at 860. Plaintiff claims he had a “liberty interest in remaining free of placement in Ad- 2 3 Seg,” see Compl., ECF No. 1 at 5, but that is “no more than [a] conclusion” and 4 insufficient to show he is entitled to relief. See Iqbal, 556 U.S. at 679. “While legal 5 conclusions can provide the framework of a complaint, they must be supported by factual 6 allegations.” Id. 7 And while Plaintiff does allege to have been segregated for 184 days as a result of 8 his disciplinary offense, and to have suffered an “adverse” transfer from CAL to PBSP as 9 a result, see Compl., ECF No. 4, he fails to allege any further factual content to show that 10 these deprivations imposed the type of “atypical and significant hardship” required by 11 Sandin to invoke a liberty interest requiring Wolff’s procedural safeguards. See Serrano, 12 345 F.3d at 1077 (quoting Sandin, 515 U.S. at 484). “Typically, administrative 13 segregation in and of itself does not implicate a protected liberty interest.” Id. at 1078 14 (emphasis added) (finding 14-month sentence to “administrative segregation alone” 15 insufficient to “implicate a protected liberty interest.”); Sandin, 515 U.S. at 486 (finding 16 30-day sentence to segregated housing unit where conditions “mirrored those … imposed 17 upon inmates in administrative segregation and protective custody,” “did not present the 18 type of atypical, significant deprivation in which a State might conceivably create a 19 liberty interest.”). Moreover, while Plaintiff claims he was transferred to PBSP, a “maximum security 20 21 prison,” see Compl., ECF No. 1 at 4, he does not explain how or to what extent his 22 transfer to PBSP imposed any “atypical and significant hardship on [him] in relation to 23 the ordinary incidents of [his] prison life” at CAL or elsewhere, see Sandin, 515 U.S. at 24 484, and “[t]he Constitution itself does not give rise to a liberty interest in avoiding 25 transfer to more adverse conditions of confinement.” Wilkinson, 545 U.S. at 221;2 see 26 27 “Centinela State Prison provides for the confinement of General Population, Level I, Level III inmates, Level III sensitive needs and maximum security (Level IV) inmates.” See https://www.cdcr.ca.gov/ 2 28 8 3:18-cv-01835-GPC-JLB 1 also Rizzo v. Dawson, 778 F.2d 527 (9th Cir. 1985) (prison authorities may change a 2 prisoner’s “place of confinement even though the degree of confinement may be different 3 and prison life may be more disagreeable in one institution than in another” without 4 violating due process). Finally, Plaintiff does not allege that his disciplinary conviction 5 “invariably affect[ed] the duration of his sentence.” Ramirez, 334 F.3d at 861; see also 6 Hicks v. Doe, No. EDCV1801505ABRAO, 2018 WL 4637961, at *5 (C.D. Cal. Sept. 25, 7 2018). 8 For these reasons, the Court finds Plaintiff’s Complaint fails to adequately allege 9 the deprivation of a protected liberty interest in violation of the Fourteenth Amendment 10 rights with respect to his CAL disciplinary conviction. See 28 U.S.C. § 1915(e)(2)(B)(ii); 11 28 U.S.C. § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 12 D. 13 Plaintiff also fails to state a plausible due process claim against Defendants Grievance Processing 14 Montgomery, Pollard, Coronado, Voong, and Beltran, to the extent he alleges they 15 “recklessly disregarded [his] rights” when reviewing his disciplinary grievance, see 16 Compl., ECF No. 1 at 5-6, or against Defendants Garcia, Beltran, Davis, Ducart and 17 Voong, to the extent he challenges validity of their decisions with respect to the 18 processing or outcomes of his inmate property appeals. Id. at 7-10. 19 /// 20 21 22 23 24 25 26 27 28 Facilities_Locator/CEN.html (last visited Oct. 22, 2018). “Pelican Bay State Prison (PBSP) is designed to house California’s most serious criminal offenders in a secure, safe, and disciplined institutional setting. Half of the prison houses maximum security inmates in a general population (GP) setting. The other half houses inmates in the Security Housing Unit (SHU), designed for inmates presenting serious management concerns.” See https://www.cdcr.ca.gov/Facilities_Locator/PBSP.html (last visited Oct. 22, 2018). However, PBSP also houses General Population (GP) and Restricted Custody General Population (RCGP) inmates in a “96-bed unit designed as a transitional program for inmates who are recently released from the SHU to GP that have custodial/security/safety concerns.” Id. In addition, PBSP “operates a 400-bed, Level I Minimum Support Facility, which houses non-violent offenders outside of the secure perimeter of the main institution, and a Firehouse with eight full time inmate firefighters.” Id. As noted above, Plaintiff does not allege whether or how his custody level at either CAL or PBSP changed, nor does he otherwise describe the nature or “degree of restraint imposed” as a result of his disciplinary conviction, segregation, or transfer to PBSP. See Ramirez, 334 F.3d at 861. 9 3:18-cv-01835-GPC-JLB A prison official’s allegedly improper processing of an inmate’s grievances or 1 2 appeals, without more, cannot serve as a basis for section 1983 liability. See generally 3 Ramirez, 334 F.3d at 860 (prisoners do not have a “separate constitutional entitlement to 4 a specific prison grievance procedure.”) (citation omitted); Mann v. Adams, 855 F.2d 5 639, 640 (9th Cir. 1988) (due process not violated simply because defendant fails 6 properly to process grievances submitted for consideration); see also Todd v. California 7 Department of Corrections and Rehabilitation, 615 Fed. Appx. 415, 415 (9th Cir. 2015) 8 (district court properly dismissed claim based on improper “processing and handling of 9 […] prison grievances,” since prisoners have no “constitutional entitlement to a specific 10 prison grievance procedure”) (citing Ramirez, 334 F.3d at 860) (quotation marks 11 omitted); Shallowhorn v. Molina, 572 Fed. Appx. 545, 547 (9th Cir. 2014) (district court 12 properly dismissed section 1983 claims against defendants who “were only involved in 13 the appeals process”) (citing Ramirez, 334 F.3d at 860); Daniels v. Aguilera, No. 2:16- 14 CV-00996-JAM-CKD P, 2018 WL 558658, at *1 (E.D. Cal. Jan. 24, 2018), report and 15 recommendation adopted sub nom. Daniels v. Aguillera, No. 2:16-CV-00996-JAM-CKD 16 P, 2018 WL 1763311 (E.D. Cal. Apr. 12, 2018) (“Because there is no right to any 17 particular grievance process, it is impossible for due process to have been violated by 18 ignoring or failing to properly process prison grievances.”). For these reasons, Plaintiff’s conclusory allegations that all Defendants abused 19 20 their “pos[tions] of power” by denying his CDCR 602s, see Compl., ECF No. 1 at 9-10, 21 are simply insufficient to state a plausible due process claim upon which § 1983 relief 22 may be granted. See Iqbal, 556 U.S. at 680-84 (citations omitted); Valdivia v. Tampkins, 23 No. EDCV 16-1975 JFW (JC), 2016 WL 7378887, at *6 (C.D. Cal. Dec. 19, 2016) (sua 24 sponte dismissing claims predicated upon the alleged improper processing of inmate 25 grievances); 28 U.S.C. §§ 1915(e)(2)(b)(ii), 1915A(b)(1); Lopez, 203 F.3d at 1126-27; 26 Rhodes, 621 F.3d at 1004. 27 /// 28 /// 10 3:18-cv-01835-GPC-JLB 1 E. 2 Lastly, to the extent Plaintiff claims Defendants confiscated, lost and/or damaged Property Deprivation Claims 3 his headphones and other personal property when they packed and shipped it to him at 4 PBSP, see Compl., ECF No. 1 at 7-10, he also fails to allege facts sufficient to support 5 any due process violation. See Iqbal, 556 U.S. at 676. 6 Plaintiff does not have a Fourth Amendment right to be free from the search or 7 seizure of his personal property. Hudson v. Palmer, 468 U.S. 517, 536 (1984); Taylor v. 8 Knapp, 871 F.2d 803, 806 (9th Cir. 1989). “[T]he fourth amendment does not protect an 9 inmate from the seizure and destruction of his property.” Taylor, 871 F.2d at 806. 10 Instead, a prisoner’s redress for the seizure of his personal property, if any, is through the 11 Fourteenth Amendment. Id.; see also Sanchez v. Cty. of Kern, No. 1:16-CV-00153-LJO- 12 MJS PC, 2016 WL 1461515, at *3 (E.D. Cal. Apr. 14, 2016). 13 As noted above, “[t]he Fourteenth Amendment’s Due Process Clause protects 14 persons against deprivations of life, liberty, or property; and those who seek to invoke its 15 procedural protection must establish that one of these interests is at stake.” Wilkinson, 16 545 U.S. at 221; Wolff, 418 U.S. at 556. Prisoners do have a protected interest in their 17 personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974), but Supreme Court 18 precedent makes clear that the procedural component of the Due Process Clause is not 19 violated by the type of random, unauthorized deprivations of property Plaintiff alleges to 20 have suffered in this case if the state provides him with an adequate post-deprivation 21 remedy. Hudson, 468 U.S. at 533 (1984); Barnett v. Centoni, 31 F.3d 813, 816-17 (9th 22 Cir. 1994) (per curiam) (citing Cal. Gov’t Code §§ 810-895). 23 Plaintiff alleges Defendant Garcia personally confiscated his headphones, and that 24 other unidentified CAL officials responsible for packing and shipping his personal 25 property to him at PBSP either lost, mistreated, and/or destroyed some of it. (See Compl., 26 ECF No. 1 at 7-9.) But he has no cognizable due process claim with respect to any 27 Defendants’ allegedly unauthorized deprivation of his personal property, whether 28 intentional or negligent, since a meaningful state post-deprivation remedy for his loss is 11 3:18-cv-01835-GPC-JLB 1 available to him. See Hudson, 468 U.S. at 533. California’s tort claim process provides 2 that adequate post-deprivation remedy. Barnett, 31 F.3d at 816-17 (“[A] negligent or 3 intentional deprivation of a prisoner’s property fails to state a claim under section 1983 if 4 the state has an adequate post deprivation remedy.”); see also Teahan v. Wilhelm, 481 F. 5 Supp. 2d 1115, 1120 (S.D. Cal. 2007); Kemp v. Skolnik, No. 2:09-CV-02002-PMP, 2012 6 WL 366946, at *6 (D. Nev. Feb. 3, 2012) (finding prisoner’s alleged loss or destruction 7 of newspaper, magazines, and books failed to state a Fourteenth Amendment claim 8 pursuant to Hudson and noting that “[i]f Plaintiff wishes to recoup the value of the 9 alleged lost materials, he will have to file a claim in small claims court in state court.”). 10 For all these reasons, the Court finds Plaintiff’s Complaint fails to allege any 11 plausible claim for relief, and therefore, it must be dismissed in its entirety pursuant to 28 12 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 13 621 F.3d at 1004. 14 F. 15 In light of his pro se status, the Court GRANTS Plaintiff leave to amend his due Leave to Amend 16 process claims with respect to the CAL disciplinary proceeding which resulted in his Ad- 17 Seg placement and transfer to PBSP. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th 18 Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to 19 amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the 20 deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v. 21 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 22 As to Plaintiff’s remaining inmate grievance-processing and property deprivation 23 claims, however, the Court DENIES leave to amend as futile. Id. at 1039 (leave to amend 24 is not required if it is “absolutely clear that the deficiencies of the complaint could not be 25 cured by amendment.”) (internal citations omitted); Everett v. Brazelton, 588 F. App’x 26 688 (9th Cir. 2014) (affirming dismissal of California prisoner’s Due Process claims 27 based on lost property because amendment as to those claims “would have been futile.”) 28 (citing Hudson, 468 U.S. at 533; Barnett, 31 F.3d at 861-17); Bearchild v. Cobban, No. 12 3:18-cv-01835-GPC-JLB 1 CV 14-31-H-DLC, 2015 WL 627732, at *5 (D. Mont. Feb. 9, 2015) (dismissing inmate 2 grievance processing allegations for failing to state a claim and without leave to amend 3 because this pleading defect could “not be cured by the allegation of additional facts.”). 4 III. Conclusion and Orders 5 For the reasons discussed, the Court: 6 1. 7 8 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 2. DIRECTS the Acting Secretary of the CDCR, or his designee, to collect 9 from Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 10 monthly payments from his account in an amount equal to twenty percent (20%) of the 11 preceding month’s income and forwarding those payments to the Clerk of the Court each 12 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). 13 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 14 ASSIGNED TO THIS ACTION. 15 16 17 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, Acting Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 4. DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim 18 upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 19 § 1915A(b)(1). 20 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 21 which to file an Amended Complaint which cures the deficiencies of pleading noted, as 22 to the due process claims related to his CAL disciplinary proceeding and conviction only. 23 Plaintiff’s Amended Complaint must be complete by itself without reference to his 24 original pleading. Defendants not named and any claim not re-alleged in his Amended 25 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 26 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 27 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 28 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 13 3:18-cv-01835-GPC-JLB 1 2 amended pleading may be “considered waived if not repled.”). If Plaintiff fails to file an Amended Complaint within the time provided, the Court 3 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to 4 state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 5 and 1915A(b), and his failure to prosecute in compliance with a court order requiring 6 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 7 not take advantage of the opportunity to fix his complaint, a district court may convert the 8 dismissal of the complaint into dismissal of the entire action.”). 9 10 IT IS SO ORDERED. Dated: October 25, 2018 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 3:18-cv-01835-GPC-JLB
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
