Boswell v. Perez et al

Filing 11

ORDER DISMISSING Plaintiff's 9 Complaint for Failure to State a Cognizable Claim signed by Magistrate Judge Michael J. Seng on 9/26/2011. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BUCK BOSWELL,

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CASE NO.
Plaintiff,

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1:09-cv-00822-MJS (PC)

ORDER DISMISSING PLAINT IFF’S
COMPLAINT FOR FAILURE TO STATE A
COGNIZABLE CLAIM

v.

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PEREZ, et al.,

(ECF No. 9)

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Defendants.

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/

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SCREENING ORDER

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I.

PROCEDURAL HISTORY

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On May 12, 2009, Plaintiff Buck Boswell, a state prisoner proceeding pro se and in

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forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.)

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Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 5.)

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The original complaint was screened and dismissed, with leave to amend, on March

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11, 2010. (ECF No. 8.) Plaintiff’s First Amended Complaint, filed March 25, 2010, is now
before the Court for screening. (ECF No. 9.)

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II.

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

against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges,

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or immunities secured by the Constitution and laws’ of the United States.” Wilder v.

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Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983

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is not itself a source of substantive rights, but merely provides a method for vindicating

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federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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III.

SUMMARY OF COMPLAINT
The First Amended Complaint alleges Correctional Officer Perez deprived Plaintiff

of his property in violation of his Due Process rights.1

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Plaintiff alleges the following:

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On February 27, 2009 Plaintiff was presented with a property inventory slip in

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anticipation of his move to administrative segregation. Plaintiff noticed the property

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K. Harrington, W arden, Kern Valley State Prison was nam ed as a Defendant in Plaintiff’s
original Com plaint but was om itted from the First Am ended Com plaint.

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inventory slip was incorrect and informed the officer. Plaintiff refused to sign the slip and

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asked that the mistake be corrected. (Compl. at 3.) The error was not fixed and Plaintiff

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was moved without his belongings. (Id. at 3, 4.) Plaintiff repeatedly submitted appeals to

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retrieve his property and has thus far been unsuccessful. (Id. at 4.)
IV.

ANALYSIS

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To state a claim under Section 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,

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1245 (9th Cir. 1987).

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A complaint 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). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Id. Facial plausibility demands more than the mere possibility that a defendant

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committed misconduct and, while factual allegations are accepted as true, legal

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conclusions are not. Id. at 1949-50.

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The Due Process Clause of the Fourteenth Amendment protects individuals
from state deprivations of life, liberty, or property without due process of law. With respect

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to a prisoner's property, the United States Supreme Court has held that “an unauthorized
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intentional deprivation of property” by a prison official constitutes a violation of due process
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if a meaningful post-deprivation remedy for the loss is unavailable. Hudson v. Palmer, 468

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U.S. 517, 533 (1984). If, however, a prison official merely acts negligently in losing a

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prisoner's property, there is no due process violation. Daniels v. Williams, 474 U.S. 327,

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328 (1986) (“[T]he Due Process Clause is simply not implicated by a negligent act of an
official causing unintended loss of or injury to life, liberty, or property.”)

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Here, Plaintiff alleges that the Defendant incorrectly catalogued Plaintiff’s property

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and refused to correct the error. Because these allegations, if proven true, at most

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demonstrate that Defendant Perez acted negligently with respect to Plaintiff's property,

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Plaintiff's allegations fail to state a cognizable due process claim. Daniels, 474 U.S. at 328.

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Even if it were assumed, for the sake of discussion, that Defendant Perez

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intentionally deprived Plaintiff of his property without authority, Plaintiff's complaint still fails

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to state a cognizable claim. Under Hudson, such actions would violate due process only

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if a meaningful post-deprivation remedy for Plaintiff's loss were unavailable. Hudson, 468

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U.S. at 533. As noted in the Court’s prior Screening Order, Plaintiff has a meaningful

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post-deprivation remedy. Plaintiff may file suit in state court pursuant to California

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Government Code §§ 900, et seq., to seek recovery for a tort by a public employee.
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Parratt v. Taylor, 451 U.S. 527, 539 (1981) (“[P]ost-depravation remedies made available

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by the State can satisfy the Due Process Clause.”); Arnold v. Williams, 2009 WL 3710522,

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at *3 (E.D. Cal. Oct.28, 2009) (California Government Code §§ 900, et seq. provide a

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sufficient post-deprivation remedy for the purposes of due process).

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IV.

CONCLUSION AND ORDER

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Plaintiff’s First Amended Complaint does not state a cognizable due process claim.
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Accordingly, it is HEREBY ORDERED that this action be dismissed with prejudice
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for failure to state a claim under Section 1983.

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IT IS SO ORDERED.

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Dated:

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ci4d6

September 26, 2011

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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