Humple v. Rooda et al

Filing 9

ORDER DISMISSING Complaint WITH LEAVE TO AMEND, signed by Magistrate Judge Gerald B. Cohn on 6/10/2011. Second Amended Complaint due by 7/14/2011. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JEFFREY A. HUMPLE,

CASE NO. 1:10-cv-00843-GBC (PC)

Plaintiff,

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ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.

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(ECF No. 1)
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K. ROODA, et al.,
SECOND AMENDED COMPLAINT DUE
WITHIN THIRTY DAYS

Defendants.

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SCREENING ORDER

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I.

PROCEDURAL HISTORY

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Plaintiff Jeffrey A. Humple (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this

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action May 13, 2010 and consented to Magistrate Judge jurisdiction on July 14, 2010.

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(ECF Nos. 1 & 7.) No other parties have appeared.

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Plaintiff’s Complaint is now before the Court for screening. For the reasons set forth

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below, the Court finds that Plaintiff’s Complaint fails to state a claim upon which relief may

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be granted.

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II.

SCREENING REQUIREMENTS

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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, 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.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual

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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

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III.

SUMMARY OF COMPLAINT

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Plaintiff alleges violations of his rights of due process. He names the following

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individuals as Defendants: James D. Hartley, K. Roorda, M. Cruz, S. T. Smith, L. Ochoa,

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N. Lopez, H. R. Allison, J. Hill, D. Foston, and J. Walker.

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Plaintiff alleges the following: Plaintiff was transferred from a level two institution to

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another level two institution. Upon arrival at the new institution, Plaintiff was informed by

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Defendant Roorda that he would not be allowed to keep certain personal property items

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even though he was allowed to have them at the other institution.

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Plaintiff seeks the Court to order Avenal State Prison to come into compliance with

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all other California Department of Corrections and Rehabilitation level two institutions and

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to allow Plaintiff to have his personal property returned.

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IV.

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ANALYSIS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to

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the deprivation of any rights, privileges, or immunities secured
by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.
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1997) (internal quotations omitted).
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A.

Due Process Claim

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Plaintiff appears to be alleging that his due process rights were violated by the
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confiscation of his personal 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), and prisoners have a
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protected interest in their personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir.
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1974). However, while an authorized, intentional deprivation of property is actionable
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under the Due Process Clause, Hudson v. Palmer, 468 U.S. 517, 532 n.13 (1984) (citing
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Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982)); Quick v. Jones, 754 F.2d
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1521, 1524 (9th Cir. 1985), neither negligent nor unauthorized intentional deprivations of
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property by a state employee “constitute a violation of the procedural requirements of the
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Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation
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remedy for the loss is available,” Hudson, 468 U.S. at 533.
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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 (West
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2006). Presentation of a written claim, and action on or rejection of the claim, are
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conditions precedent to suit. State v. Superior Court of Kings County (Bodde), 90 P.3d
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116, 123 (2004); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir.
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1995). To state a tort claim against a public employee, a plaintiff must allege compliance

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with the Tort Claims Act. State v. Superior Court, 90 P.3d at 123; Mangold, 67 F.3d at

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1477; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988).

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Plaintiff states that, after a transfer, he was not allowed to have all of his personal

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property. Plaintiff does not state if this confiscation was pursuant to a prison policy or was

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an unauthorized act by Defendant Roorda. Plaintiff also fails to offer proof of compliance

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with the California Tort Claims Act. Thus, Plaintiff has failed to allege facts sufficient to find

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a violation of his due process rights. The Court will grant Plaintiff leave to amend his

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complaint on this claim. In his amended complaint, Plaintiff should describe in greater

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detail this claim.

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B.

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Plaintiff appears to be alleging that his appeals were mishandled or wrongly denied

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Prison Appeals Procedure Claim

by Defendants.

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Defendants’ actions in responding (or failing to respond) to Plaintiff’s appeals alone

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cannot give rise to any claims for relief under Section 1983 for violation of due process.

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Interests protected by the Due Process Clause may arise from two sources—the Due

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Process Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 215, 223-27

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(1976). There is no constitutional right to a prison administrative appeal or grievance

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system. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). However, California Code

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of Regulations, title 15 section 3084 et seq. grants state prisoners the right to a prison

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appeals process. The regulations are purely procedural—they require the establishment

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of a procedural structure for reviewing prisoner complaints and set forth no substantive

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standards. Instead, they provide for flexible appeal time limits, see Cal. Code Regs. tit. 15,

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§ 3084.6, and, at most, that “no reprisal shall be taken against an inmate or parolee for

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filing an appeal,” id. § 3084.1(d). A provision that merely sets procedural requirements,

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even if mandatory, cannot form the basis of a constitutionally cognizable liberty interest.

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Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993); see, e.g., Antonelli v. Sheahan, 81

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F.3d 1422, 1430 (7th Cir. 1996) (prison grievance procedure is procedural right that does

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not give rise to protected liberty interest requiring procedural protections of Due Process

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Clause).

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Accordingly, a prison official’s failure to process grievances, without more, is not

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actionable under Section 1983. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993);

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see also Ramirez, 334 F.3d at 860 (prisoner’s claimed loss of liberty interest in processing

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of his appeals does not violate due process because prisoners lack a separate

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constitutional entitlement to a specific prison grievance system). Although there is a First

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Amendment right to petition government for redress of grievances, there is no right to a

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response or any particular action. See Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)

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(“prisoner’s right to petition the government for redress . . . is not compromised by the

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prison’s refusal to entertain his grievance.”).

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Thus, because he has neither a liberty interest nor a substantive right to an inmate

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appeal, Plaintiff fails to state a claim in this regard. Because amendment of this claim

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would be futile, the Court advises Plaintiff that he would be well-served devoting his energy

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to pursuing his other claims.

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C.

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Under section 1983, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). The Supreme Court recently emphasized that the term “supervisory liability,”

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loosely and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129

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S.Ct. at 1949. “Government officials may not be held liable for the unconstitutional conduct

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of their subordinates under a theory of respondeat superior.” Id. at 1948. Rather, each

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government official, regardless of his or her title, is only liable for his or her own

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misconduct, and therefore, Plaintiff must demonstrate that each defendant, through his or

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her own individual actions, violated Plaintiff’s constitutional rights. Id. at 1948-49.

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Personal Participation By Defendants

In this action, Plaintiff has not alleged facts demonstrating that Defendants James

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D. Hartley, M. Cruz, S. T. Smith, L. Ochoa, N. Lopez, H. R. Allison, J. Hill, D. Foston, or J.

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Walker personally acted to violate his rights. Plaintiff must specifically link each Defendant

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to a violation of his rights. Plaintiff shall be given the opportunity to file an amended

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complaint curing the deficiencies described by the Court in this order.

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V.

CONCLUSION AND ORDER

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The Court finds that Plaintiff’s Complaint fails to state any Section 1983 claims upon

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which relief may be granted. The Court will provide Plaintiff time to file an amended

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complaint to address the potentially correctable deficiencies noted above. See Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). In his Amended Complaint, Plaintiff must

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demonstrate that the alleged incident or incidents resulted in a deprivation of his

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constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth “sufficient factual

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matter . . . to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting

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Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones, 297 F.3d at 934.

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Plaintiff should note that although he has been given the opportunity to amend, it

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is not for the purposes of adding new defendants or claims. Plaintiff should focus the

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amended complaint on claims and defendants discussed herein.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint

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be complete in itself without reference to any prior pleading. As a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,

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57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer

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serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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The amended complaint should be clearly and boldly titled “First Amended Complaint,”

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refer to the appropriate case number, and be an original signed under penalty of perjury.

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to file

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an amended complaint within thirty (30) days from the date of service of this

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order;
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Plaintiff shall caption the amended complaint “First Amended Complaint” and
refer to the case number 1:10-cv-843-GBC (PC); and

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3.

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If Plaintiff fails to comply with this order, this action will be dismissed for
failure to state a claim upon which relief may be granted.

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IT IS SO ORDERED.

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Dated:
1j0bbc

June 10, 2011
UNITED STATES MAGISTRATE JUDGE

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