Smith v. Juarez et al

Filing 11

ORDER - Plaintiff's 10 Second Amended Complaint and this action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment accordingly. The Clerk of Court must make an entry on the docket stating that the dismi ssal for failure to state a claim may count as a "strike" under 28 U.S.C. § 1915(g). The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Judge David G Campbell on 12/16/2015. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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William Allen Smith,

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No. CV 15-01931-PHX-DGC (JZB)

Plaintiff,
v.

ORDER

Unknown Juarez, et al.,

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Defendants.

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On September 25, 2015, Plaintiff William Allen Smith, who is confined in the

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Correctional Training Facility in Soledad, California, filed a pro se civil rights Complaint

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pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In an

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October 13, 2015 Order, the Court granted the Application to Proceed and dismissed the

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Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days

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to file an amended complaint that cured the deficiencies identified in the Order.

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On October 28, 2015, Plaintiff filed his First Amended Complaint. In a November

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10, 2015 Order, the Court dismissed the First Amended Complaint because Plaintiff had

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failed to state a claim. The Court gave Plaintiff 30 days to file a second amended

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complaint that cured the deficiencies identified in the Order.

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On December 3, 2015, Plaintiff filed a Second Amended Complaint (Doc. 10).

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The Court will dismiss the Second Amended Complaint and this action.

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....

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I.

Statutory Screening of Prisoner Complaints

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or an officer or an employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

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has raised claims that are legally frivolous or malicious, that fail to state a claim upon

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which relief may be granted, or that seek monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2).

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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8

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does not demand detailed factual allegations, “it demands more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.”

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(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id.

Ashcroft v. Iqbal, 556 U.S. 662, 678

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id. “Determining whether a complaint states a plausible

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claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

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on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

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specific factual allegations may be consistent with a constitutional claim, a court must

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assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

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at 681.

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But as the United States Court of Appeals for the Ninth Circuit has instructed,

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courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

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stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

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Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

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II.

Second Amended Complaint

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In his eight-count Second Amended Complaint, Plaintiff sues the following

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employees at the Corrections Corporation of America (CCA): Case Manager Juarez,

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Correctional Counselors Cooper and Castillo, and Correctional Officer Drexler. In his

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Request for Relief, Plaintiff seeks the appointment of counsel and monetary damages.

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In Count One, Plaintiff asserts a retaliation claim and alleges that on

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September 25, 2014, he got into a verbal altercation with Defendant Castillo. After the

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verbal altercation, Defendant Castillo “called a ‘code,’” and three staff members stole and

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destroyed Plaintiff’s personal property. Plaintiff claims that the California Department of

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Corrections (CDC) and CCA told him “that [his] rights were violated.” Plaintiff claims

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he was injured as follows: he was “penalized for talking” and his property was stolen and

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destroyed.

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In Counts Two, Three, and Four, Plaintiff asserts retaliation claims and alleges

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that on September 25, 2014, Defendants Juarez, Cooper, and Drexler destroyed his cell

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and stole and destroyed his personal property in retaliation for a verbal altercation that

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took place between Plaintiff and Defendant Castillo. Plaintiff claims that CDC and CCA

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told him that Defendants Juarez, Cooper, and Drexler “violated [Plaintiff’s] rights.”

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In Count Five, Plaintiff asserts a property claim and alleges that on September 25,

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2014, Defendant Castillo stole and destroyed his personal property. Plaintiff further

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alleges that, although he did “appeal the action, [he] was not afforded a fair process,” as

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he “was not allowed a fair opportunity to have [his] claim heard.”

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In Counts Six, Seven, and Eight, Plaintiff asserts property claims and violations

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of his Eighth Amendment rights. In support of his claims, Plaintiff alleges that on

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September 25, 2014, Defendants Juarez, Cooper, and Drexler stole and destroyed his

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property in retaliation for Plaintiff’s involvement in a verbal altercation.

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III.

Failure to State a Claim

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To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants

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(2) under color of state law (3) deprived him of federal rights, privileges or immunities

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and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th

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Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d

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1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific

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injury as a result of the conduct of a particular defendant and he must allege an

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affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode,

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423 at 371-72, 377 (1976).

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Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey

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v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a

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liberal interpretation of a civil rights complaint may not supply essential elements of the

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claim that were not initially pled. Id.

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A.

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As discussed in the Court’s November 10, 2015 Order, a viable claim of First

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Amendment retaliation contains five basic elements: (1) an assertion that a state actor

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took some adverse action against an inmate (2) because of (3) that prisoner’s protected

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conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment

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rights (or that the inmate suffered more than minimal harm) and (5) did not reasonably

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advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

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Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claim

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requires an inmate to show (1) that the prison official acted in retaliation for the exercise

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of a constitutionally protected right, and (2) that the action “advanced no legitimate

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penological interest”). The plaintiff has the burden of demonstrating that his exercise of

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his First Amendment rights was a substantial or motivating factor behind the defendants’

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conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977);

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Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).

Retaliation Claims

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In his First Amended Complaint, Plaintiff alleges that Defendants Castillo, Juarez,

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Cooper, and Drexler destroyed his cell and stole and destroyed his personal property in

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retaliation for Plaintiff’s involvement in a verbal altercation with Defendant Castillo.

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Plaintiff’s conclusory allegation that he was engaged in protected conduct is not

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sufficient, as Plaintiff has failed to allege any facts showing that he was engaged in

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protected conduct. Engaging in a verbal altercation with prison staff is not protected

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conduct. Accordingly, the Court will dismiss Counts One through Four.

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B.

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Plaintiff has failed to state a loss of property claim in Counts Five through Eight.

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Although Plaintiff argues that the alleged loss of his property constitutes a violation of his

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Eighth Amendment rights, the Eighth Amendment does not provide a basis for his

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claims. As discussed in the Court’s previous Orders, the “Due Process Clause is simply

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not implicated by a negligent act of an official causing unintended loss of or injury to life,

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liberty, or property.” Daniels v. Williams, 474 U.S. 327, 328 (1986). Moreover, even

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unauthorized and intentional deprivations of property do not constitute a violation of

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procedural requirements of the Due Process Clause if a meaningful post-deprivation

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remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984). Plaintiff

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has an adequate post-deprivation remedy. See Howland v. State, 818 P.2d 1169, 1172-73

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(Ariz. App. 1991) (prisoner failed to state a due process claim because Arizona law

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provided an available state tort remedy to recover the value of his property). That a

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prisoner “might not be able to recover under these remedies the full amount which he

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might receive in a § 1983 action is not . . . determinative of the adequacy of the state

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remedies.” Hudson 468 U.S. at 535. Here, Plaintiff has an available post-deprivation

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remedy – a common law tort suit. Accordingly, Plaintiff has again failed to state a

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property claim, and the Court will dismiss Counts Five through Eight.

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IV.

Property Claims

Dismissal without Leave to Amend

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Because Plaintiff has failed to state a claim in his Second Amended Complaint, the

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Court will dismiss his Second Amended Complaint. “Leave to amend need not be given

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if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express,

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Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is

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particularly broad where Plaintiff has previously been permitted to amend his complaint.

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Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996).

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Repeated failure to cure deficiencies is one of the factors to be considered in deciding

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whether justice requires granting leave to amend. Moore, 885 F.2d at 538.

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Plaintiff has made three efforts at crafting a viable complaint and appears unable

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to do so despite specific instructions from the Court. The Court finds that further

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opportunities to amend would be futile. Therefore, the Court, in its discretion, will

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dismiss Plaintiff’s Second Amended Complaint without leave to amend.

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IT IS ORDERED:

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(1)

Plaintiff’s Second Amended Complaint (Doc. 10) and this action are

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dismissed for failure to state a claim, and the Clerk of Court must enter judgment

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accordingly.

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(2)

The Clerk of Court must make an entry on the docket stating that the

dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).
(3)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of

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this decision would not be taken in good faith.

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Dated this 16th day of December, 2015.

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