Davis v. Lloyd et al

Filing 17

FINDINGS and RECOMMENDATIONS Recommending Case be Dismissed for Failure to State a 15 Claim signed by Magistrate Judge Michael J. Seng on 04/20/2012. Referred to Judge Ishii; Objections to F&R due by 5/29/2012. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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FRANCIS W. DAVIS,

CASE NO.

1:10-cv-0495-AWI-MJS (PC)

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Plaintiff,

FINDINGS AND RECOMMENDATION
RECOMMENDING CASE BE DISMISSED
FOR FAILURE TO STATE A CLAIM

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v.
(ECF No. 15)

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LLOYD, et. al.,

OBJECTIONS DUE WITHIN THIRTY DAYS

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Defendants.

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/

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Plaintiff Francis W. Davis (“Plaintiff”) is a state prisoner proceeding pro se in this civil
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rights action pursuant to 42 U.S.C. § 1983.
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Plaintiff initiated this action on March 19, 2010. (ECF No. 1.) The Court screened
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Plaintiff’s original Complaint on December 22, 2011, and dismissed it with leave to amend.
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(ECF No. 12.) Plaintiff filed his First Amended Complaint on March 7, 2012. (Am. Compl.,
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ECF No. 15.) No other parties have appeared.
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Plaintiff’s Amended Complaint is now before the Court for screening. For the
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reasons stated below, the Court finds that Plaintiff again fails to state a cognizable claim
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and this action should be dismissed.
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I.

SCREENING REQUIREMENT

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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 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 or malicious,” 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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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, ____ U.S. ____, ____, 129

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S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is

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plausible on its face.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555).

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Facial plausibility demands more than the mere possibility that a defendant committed

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misconduct and, while factual allegations are accepted as true, legal conclusions are not.

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Id. at 1949-50.

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II.

PLAINTIFF’S CLAIMS

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Plaintiff is currently incarcerated at Mule Creek State Prison. He was previously

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incarcerated at California Substance Abuse Treatment Facility (“CSATF”), the prison where

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the events at issue in the Amended Complaint occurred. Plaintiff brings this action for

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violations of his Fourth Amendment right to be free from unreasonable search and seizure,

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his rights under the Due Process Clause of the Fourteenth Amendment, and his rights

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under the Equal Protection Clause of the Fourteenth Amendment. Plaintiff also claims

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violations of various state laws.

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Plaintiff alleges as follows against Defendant Lloyd, a Correctional Officer at
CSATF.

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On April 8, 2009, Plaintiff was informed that he was being transferred from one

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facility to another at CSATF. (Am. Compl. at 6.) He placed all of his property in a laundry

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cart, and during the transfer process he was placed in the custody of Defendant Lloyd.
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(Id.) Defendant Lloyd searched the cart, and confiscated a J. Win radio, a Sony AM/FM

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clock radio, a coaxial cord, two statues Plaintiff had made, and Reebok tennis shoes. (Id.)

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Plaintiff tried to have the statues and shoes mailed to his sister, but Defendant Lloyd gave

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them to other inmates on April 22, 2009. (Id. at 7.) Defendant Lloyd also gave the

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confiscated radios to other inmates. (Id. at 7.) Plaintiff filed a claim with the California

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Victim Compensation and Government Claims Board, even though (Plaintiff claims) it was

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unnecessary to do so since Defendant Lloyd was not being sued in his “official capacity”.

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(Id. at 6, 64-71.)

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Defendant Lloyd allowed inmates similarly situated to Plaintiff to have contraband

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items. (Compl. at 10.) These inmates were Defendant Lloyd’s “inmate workers and/or his

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inmate informant.” (Id.) Defendant Lloyd confiscated the items based on an impermissible

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motive. (Id.)

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Plaintiff seeks $175.94 in compensatory damages, $125,000 in punitive damages,

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and $1.00 in nominal damages.

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III.

ANALYSIS

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A.

Section 1983 Generally

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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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To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that

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a right secured by the Constitution or laws of the United States was violated, and (2) that

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the alleged violation was committed by a person acting under the color of state law. See

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West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245

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(9th Cir.1987).

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B.

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Although Plaintiff does not explicitly characterize his claim a due process claim for

Fourteenth Amendment Due Process Claim

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deprivation of property, his factual allegations suggest as much. Plaintiff alleges that

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Defendant Lloyd unlawfully took and deprived Plaintiff of his property..

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The Due Process Clause protects prisoners from being deprived of property without

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due process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Prisoners have a

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protected interest in their personal property, Hansen v. May, 502 F.2d 728, 730 (9th

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Cir.1974). However, while an authorized, intentional deprivation of property is actionable

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under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n. 13 (1984)

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(citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982)); Quick v. Jones, 754

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F.2d 1521, 1524 (9th Cir. 1985), neither negligent nor unauthorized intentional deprivations

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of property by a governmental employee “constitute a violation of the procedural

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requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful

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post deprivation remedy for the loss is available,” Hudson, 468 U.S. at 533; see also

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Raditch v. United States, 929 F.2d 478, 481 (9th Cir. 1991) (“Although Hudson involved

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§ 1983 and the Fourteenth Amendment, the same due process principles apply to the

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federal government through the Fifth Amendment.”).

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California Law provides an adequate post-deprivation remedy for any property

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deprivations. See Cal. Gov't Code §§ 895; Barnett v. Centoni, 31 F.3d 813, 816–17 (9th

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Cir. 1994). California's Tort Claims Act requires that a tort claim against a public entity or

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its employees be presented to the California Victim Compensation and Government Claims

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Board, formerly known as the State Board of Control, no more than six months after the

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cause of action accrues. Cal. Gov't Code §§ 905.2, 910, 911.2, 945.4, 950–950.2.

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Presentation of a written claim, and action on or rejection of the claim, are conditions

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precedent to suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 13

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Cal.Rptr.3d 534, 90 P.3d 116, 123 (2004); Mangold v. California Pub. Utils. Comm'n, 67

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F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against a public employee, a plaintiff

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must allege compliance with the Tort Claims Act. State v. Superior Court, 13 Cal.Rptr.3d

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534, 90 P.3d at 123; Mangold, 67 F.3d at 1477; Karim–Panahi v. Los Angeles Police Dept.,

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839 F.2d 621, 627 (9th Cir. 1988).
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Plaintiff did file a claim with the California Victim Compensation and Government

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Claims Board, but it was rejected as untimely. Plaintiff argues that he does not need to

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comply with the California Tort Claims Act because he is not suing Defendant Lloyd in his

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“official capacity.” This argument is unavailing. Plaintiff must comply with the California Tort

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Claims Act. Cal. Gov't Code § 950 (“a claim need not be presented as a prerequisite to the

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maintenance of an action against a public employee or former public employee for injury

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resulting from an act or omission in the scope of his employment as a public employee”).

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Plaintiff has alleged an unlawful, unauthorized taking and deprivation of property; i.e., by

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definition, a taking outside the scope of Defendant’s employment, not done in an official

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capacity. The Tort Claims Act exception does not apply. Plaintiff did not comply with the

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requirements of the California Tort Claims Act by filing a timely claim. Plaintiff’s claim for

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unauthorized deprivation of his property should be dismissed. Since the deficiency in

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Plaintiff’s complaint could only be corrected by an allegation that is directly contrary to

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Plaintiff’s explicit claim here, no useful purpose would be served by allowing amendment.

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C.

Fourteenth Amendment Equal Protection Claim

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Plaintiff alleges that Defendant Lloyd violated his rights under the Equal Protection

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Clause because other inmates were able to keep radios and other contraband even though

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Plaintiff was not allowed to maintain the same.

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The Equal Protection Clause of the Fourteenth Amendment requires that persons

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who are similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc.,

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473 U.S. 432, 439 (1985). An equal protection claim may be established in two ways. The

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first method requires a plaintiff to show that the defendant has intentionally discriminated

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against the plaintiff on the basis of the plaintiff's membership in a protected class. See,

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e.g., Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Under this theory of

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equal protection, the plaintiff must show that the defendant's actions were a result of the

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plaintiff's membership in a suspect class, such as race, religion, or alienage. Thornton v.

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City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005). In this case, Plaintiff does not

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allege that he is a member of a suspect class. Accordingly, he has failed to state an equal
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protection claim under this theory.

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If the action in question does not involve a suspect classification, a plaintiff may

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establish an equal protection claim by showing that similarly situated individuals were

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intentionally treated differently without a rational relationship to a legitimate state purpose.

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Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); San Antonio School District v.

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Rodriguez, 411 U.S. 1 (1972); SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662,

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679 (9th Cir. 2002). To state an equal protection claim under this theory, a plaintiff must

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allege that: (1) the plaintiff is a member of an identifiable class; (2) the plaintiff was

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intentionally treated differently from others similarly situated; and (3) there is no rational

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basis for the difference in treatment. Village of Willowbrook, 528 U.S. at 564.

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Plaintiff may be considered a class of one. Village of Willowbrook v. Olech, 528 U.S.

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562, 564, (2000) (equal protection claim may be brought by a “class of one,” where the

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plaintiff alleges that he/she has been intentionally treated differently from others similarly

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situated and that there is no rational basis for the difference in treatment). However,

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Plaintiff fails to allege that other prisoners allowed to keep contraband were similarly

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situated. In alleging that these prisoners were Defendant Lloyd’s “inmate workers and/or

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his inmate informant”, Plaintiff identifies them as being dissimilar to him in status in the

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prison. There is nothing pled here that would show a lack of rational basis for the difference

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in treatment. Plaintiff has failed to state an equal protection claim.

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C.

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The Court declines to exercise jurisdiction over Plaintiff’s state law claims. Gini v.

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Las Vegas Metropolitan Police Dep't, 40 F.3d 1041, 1046 (9th Cir. 1994) (“When ... the

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court dismisses the federal claim leaving only state claims for resolution, the court should

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decline jurisdiction over the state claims and dismiss them without prejudice.” Les Shockley

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Racing v. National Hod Rod Ass'n, 884 F.2d 504, 509 (9th Cir. 1989)). Thus, Plaintiff's state

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law claims should dismissed without prejudice.

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IV.

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State Tort Claims

CONCLUSION AND RECOMMENDATION
The Court finds that Plaintiff’s First Amended Complaint fails to state any Section
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1983 claims upon which relief may be granted against the named Defendants. Under Rule

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15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be freely given when

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justice so requires.” In addition, “[l]eave to amend should be granted if it appears at all

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possible that the plaintiff can correct the defect.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th

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Cir. 2000) (internal citations omitted). However, in this action, Plaintiff has filed two

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complaints and received substantial guidance from the Court in its Screening Order. (ECF

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Nos. 1, 12, & 15.) Even after receiving the Court’s guidance, Plaintiff failed to make

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sufficient alterations or to include additional facts to address the noted deficiencies.

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Because of this, the Court finds that the deficiencies outlined above are not capable of

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being cured by amendment, and therefore recommends that further leave to amend not be

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granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir.

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1987).

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Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that this

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action be DISMISSED in its entirety, WITH PREJUDICE, for failure to state a claim upon

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which relief may be granted.

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These Findings and Recommendation will be submitted to the United State District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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thirty (30) days after being served with these Findings and Recommendation, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
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April 20, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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