Martin v. Adams et al

Filing 13

FINDINGS and RECOMMENDATIONS recommending that Certain Claims be DISMISSED re 11 First Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Jennifer L. Thurston on 5/25/2012. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
STEVEN A. MARTIN,

Case No. 1:10-cv-01153 AWI-JLT (PC)

12
Plaintiff,

FINDINGS AND RECOMMENDATIONS
TO DISMISS CERTAIN CLAIMS IN
PLAINTIF’S FIRST AMENDED
COMPLAINT

13
v.
14
DERRAL G. ADAMS, et al.,
15

(Doc. 11).
Defendants.

16
17

Plaintiff, Steven Martin, is a state prisoner proceeding pro se and in forma pauperis with a

18

civil action pursuant to 42 U.S.C. § 1983. On April 12, 2012, this Court dismissed Plaintiff‟s

19

initial Complaint with leave to amend. (Doc. 9). Plaintiff filed a First Amended Complaint

20

(“FAC”) on May 11, 2012. (Doc. 11). Based upon its review of the FAC, the Court recommends

21

that Plaintiff‟s Due Process claims related to the theft of his CD player and his Due Process and

22

First Amendment claims relating to Defendant‟s failure to return receipts showing ownership of

23

the CD player be dismissed.1

24

///

25
1

26
27
28

This Court has recently issued an order directing service of the Complaint on Defendant
J. Nora or J. Mora on the sole claim that Defendant retaliated against Plaintiff when he stole
Plaintiff‟s CD player. Thus, these Findings and Recommendations only relate to Plaintiff‟s Due
Process claims for theft of his CD player and his Due Process and First Amendment claims for
Defendant‟s failure to return receipts showing ownership of the CD player.

1

1

I. SCREENING REQUIREMENT

2

Because Plaintiff is seeking redress from governmental employees in a civil action, the Court

3

is required to screen his complaint in order to identify cognizable claims. 28 U.S.C. § 1915A(a)-

4

(b). The Court shall “dismiss the complaint, or any portion of the complaint, if the complaint (1)

5

is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks

6

monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b); 28

7

U.S.C. § 1915(e)(2)(B)(i)-(iii).

8

II. PLEADING STANDARDS

9

“Pro se documents are to be liberally construed” and “„must be held to „less stringent

10

standards than formal pleadings drafted by lawyers.‟” Estelle v. Gamble, 429 U.S. 97, 106 (1976)

11

(quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “[They] can only be dismissed for

12

failure to state a claim if it appears „beyond doubt that the plaintiff can prove no set of facts in

13

support of his claim which would entitle him to relief.‟” (Id.)

14

Procedure 8(a), “[a] pleading that states a claim for relief must contain: (1) a short and plaint

15

statement of the grounds for the court‟s jurisdiction, . . . ; (2) a short and plain statement of the

16

claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought.” Fed.

17

R. Civ. P. 8(a). Each allegation must be simple, concise, and direct. Fed. R. Civ. P. 8(d)(1).

18

While a complaint “does not need detailed factual allegations, a plaintiff‟s obligation to provide

19

the „grounds‟ of his entitlement to relief requires more than labels and conclusions, and a

20

formulaic recitation of the elements of a cause of action will not do.”

21

Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks and citations omitted).

22

analyzing a pleading, the Court sets conclusory factual allegations aside, accept all non-

23

conclusory factual allegations as true, and determines whether those non-conclusory factual

24

allegations accepted as true state a claim for relief that is plausible on its face. Ashcroft v. Iqbal,

25

129 S. Ct. 1937, 1949-52 (2009).

26

requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

27

(Id. at 1949) (internal quotation marks and citation omitted). In determining plausibility, the

28

Court is permitted “to draw on its judicial experience and common sense.” (Id. at 1950)

Under Federal Rule of Civil

Bell Atl. Corp. v.
In

“The plausibility standard is not akin to a probability

2

1

III. PLAINTIFF’S FIRST AMENDED COMPLAINT

2

On April 28, 2009, Plaintiff was approved to be transferred from CSP-Corcoran to CSP-

3

Centinela. (Doc. 11. at 4). He was ordered to bring all his personal property for transportation

4

and packing to the “CSP-Corcoran – 1 R&R.” (Id.) Plaintiff alleges that on May 11, 2009, while

5

packing his personal property at CSP-Corcoran, Defendant J. Nora or J. Mora (“Defendant”), saw

6

legal documents among Plaintiff‟s property and learned the documents related to a lawsuit against

7

various correctional officers (but not Defendant). (Id.)

8

Plaintiff contends that after Defendant learned of the lawsuit, Defendant took Plaintiff‟s Sony

9

CD Radio Cassette recorder (“CD player”) and informed him that the CD player was not allowed

10

at CSP-Centinela. (Id. at 5). Plaintiff values the CD player at $200.00. (Id.) Plaintiff informed

11

Defendant that he believed he was entitled to retain any appliance he was given while in prison

12

and that he intended to file a grievance. (Id.) Plaintiff claims that Defendant then ordered him

13

back to his cell. (Id.) Instead of leaving, Plaintiff merely pretended to leave, then returned “about

14

seven seconds later” and asked Defendant to produce his CD player. (Id.) Plaintiff states that CD

15

player was not in the box with his other personal belonging and Defendant made no attempt to

16

locate the missing CD player. (Id. at 6). Plaintiff notes that the three other staff members who

17

had been assisting Defendant were also gone. (Id.) Plaintiff further alleges that after the incident

18

he filed several grievances with CSP-Corcoran, along with his original receipts showing proof of

19

ownership. (Id.) Plaintiff did not receive a response to his grievances and his original receipts are

20

now missing as well. (Id. at 6).

21

IV. DISCUSSION

22

Plaintiff contends that Defendant retaliated against him in violation of Plaintiff‟s

23

Fourteenth Amendment Due Process rights and his First Amendment right to speech when

24

Defendant failed to return Plaintiff‟s original receipts for the CD player to him. (Id.).

25

A. Due Process

26

Plaintiff claims that Defendant stole his personal property. The Due Process Clause

27

protects prisoners from being deprived of property without due process of law. See Gonzales v.

28

Price (E.D. Cal., Dec. 2, 2009) 2009 WL 4718850 *3-4 (citing Wolff v. McDonnell, 418 U.S.
3

1

539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) and Hansen v. May, 502 F.2d 728, 730 (9th

2

Cir.1974). While an authorized, intentional deprivation of property is actionable under the Due

3

Process Clause, neither negligent nor unauthorized intentional deprivations of property by a state

4

employee “constitute a violation of the procedural requirements of the Due Process Clause of the

5

Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available,” See

6

Gonzales, 2009 WL 4718850 *3-4 (citing Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194,

7

82 L.Ed.2d 393 (1984), Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71

8

L.Ed.2d 265 (1982) and Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir.1985)). Thus, where the

9

state provides a meaningful postdeprivation remedy, only authorized, intentional deprivations

10

constitute actionable violations of the Due Process Clause. An authorized deprivation is one

11

carried out pursuant to established state procedures, regulations, or statutes. Gonzales, 2009 WL

12

4718850 *3-4 (citing Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir.1985), and Knudson v.

13

City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir.1987).

14

Since there is no indication that Plaintiff‟s property was taken because of an established

15

state procedure, Plaintiff's allegations that Defendant stole his personal property amount to an

16

unauthorized intentional deprivation. Defendant‟s actions therefore constitute a violation of due

17

process only if a meaningful post-deprivation remedy for Plaintiff‟s loss is unavailable. See

18

Hudson, 468 U.S. at 533. Here, Plaintiff has a meaningful post-deprivation remedy: Plaintiff

19

may file suit in state court pursuant to California Government Code §§ 900, et seq. See Parratt v.

20

Taylor, 451 U.S. 527, 539 (1981) (“[P]ost-deprivation remedies made available by the State can

21

satisfy the Due Process Clause.”); Arnold v. Williams, No. CIV S-08-28886 DAD P, 2009 WL

22

3710522, at *3 (E.D. Cal. Oct. 28, 2009) (California Government Code §§ 900, et seq. provide a

23

sufficient post-deprivation remedy for the purposes of due process). Consequently, Plaintiff fails

24

to state a cognizable claim against Defendant for violation of his rights under the Due Process

25

Clause for stealing his CD player and original receipts.

26

B. First Amendment Claim – Failure to Return Original Receipts

27

Plaintiff alleges that Defendant failed to return the original receipts Plaintiff submitted

28

with the grievance he filed for the stolen/missing CD player and that Defendant‟s failure to return
4

1

his receipts was done in retaliation for Plaintiff‟s involvement in litigation against other

2

correctional officers. (Id. at 6).

3

Under the First Amendment, prison officials may not retaliate against prisoners for

4

initiating litigation or filing administrative grievances. Rhodes v. Robinson, 408 F.3d 559, 568

5

(9th Cir. 2005). A viable claim of retaliation entails five basic elements: (1) an assertion that a

6

prison official took some adverse action against an inmate (2) because of (3) the inmate‟s

7

protected conduct; (4) the adverse action chilled the inmate‟s exercise of his First Amendment

8

rights; and (5) the adverse action did not reasonably advance a legitimate penological purpose.

9

Id.; Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994).

10

With regard to Plaintiff‟s missing receipts, Plaintiff claims that Defendant allegedly failed

11

to use, in violation of Plaintiff's Due Process rights, certain procedures when processing Plaintiff's

12

administrative grievance. (Id. at 6).

13

entitlement to a specific prison grievance procedure.” Teahan v. Wilhelm (S.D. Cal. 2007) 481

14

F.Supp.2d 1115, 1120-21 (citing Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.2003) (citing

15

Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988)). Therefore, Defendant's handling of Plaintiff's

16

grievance cannot form the basis of a First Amendment retaliation claim.

Prisoners, however, “lack a separate constitutional

17

V. Findings and Recommendations

18

Plaintiff fails to establish a due process violation for the intentional and unauthorized theft

19

of his stereo and receipts, as he has an available remedy under state law. Furthermore, he does

20

not have a constitutional right to a specific grievance procedure and therefore cannot plead facts

21

to demonstrate a retaliation claim for his missing receipts.

22

Based upon the record and the facts set forth in the FAC, it does not appear the

23

deficiencies in the portions of the FAC addressed here can be cured by amendment. Thus, the

24

Court finds that granting Plaintiff further leave to amend would be futile. See Lopez v. Smith,

25

203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (requiring leave to be granted to the extent

26

deficiencies can be cured by amendment).

27

///

28

///
5

1

Accordingly, IT IS HEREBY RECOMMENDED:

2

1. The claim against Defendant J. Nora or Mora for stealing Plaintiff‟s CD player

3

in violation of Plaintiff‟s Fourteenth Amendment right to Due Process is

4

DISMISSED WITHOUT LEAVE TO AMEND.

5

2. The claim against Defendant J. Nora or Mora for not returning Plaintiff‟s

6

original receipts in violation of Plaintiff‟s Fourteenth Amendment right to Due

7

Process rights is DISMISSED WITHOUT LEAVE TO AMEND.

8

3. The claim against Defendant J. Nora or Mora for not returning Plaintiff‟s

9

original receipts in violation of Plaintiff‟s First Amendment right to speech is

10

DISMISSED WITHOUT LEAVE TO AMEND.

11

These findings and recommendations are submitted to the United States District Judge

12

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the

13

Local Rules of Practice for the United States District Court, Eastern District of California. Within

14

14 days after being served with these findings and recommendations, Plaintiff may file written

15

objections with the court. Such a document should be captioned “Objections to Magistrate

16

Judge‟s Findings and Recommendations.” Plaintiff is advised failure to file objections within the

17

specified time may waive the right to appeal the District Court‟s order. Martinez v. Ylst, 951 F.2d

18

1153 (9th Cir. 1991).

19
20
21

IT IS SO ORDERED.
Dated:

22

May 25, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

23
24

DEAC_Signature-END:

9j7khijed

25
26
27
28
6