Posadas v. Avenal State Prison, et al.

Filing 19

ORDER DISMISSING ACTION, With Prejudice, for Failure to State a Claim and ORDER That Dismissal is Subject to 28 U.S.C. 1915(G), signed by Magistrate Judge Barbara A. McAuliffe on 2/7/2012. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ERWIN POSADAS,

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CASE NO. 1:10-cv–01374-BAM PC
Plaintiff,

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ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM

v.

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AVENAL STATE PRISON, et al.,

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Defendants.

ORDER THAT DISMISSAL IS SUBJECT TO
28 U.S.C. § 1915(G)
/

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I.

Screening Requirement

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Plaintiff Erwin Posadas is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on August 2, 2010. On

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November 28, 2011, the complaint was dismissed, with leave to amend, for failure to state a claim.

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On January 3, 2012, the first amended complaint, filed December 15, 2011, was dismissed, with

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leave to amend, for failure to state a claim. Currently before the Court is the second amended

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complaint, filed February 1, 2012.

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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In determining whether a complaint states a claim, the Court looks to the pleading standard

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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and
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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

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Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555, 127 S. Ct. 1955 (2007)).

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Under section 1983, Plaintiff must demonstrate that each defendant personally participated

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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires

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the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct.

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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “[A] complaint [that]

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pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line

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between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting

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Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations

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contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 129

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S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555).

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II.

Complaint Allegations

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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and

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is incarcerated at California State Prison, Corcoran. To the extent that the Court is able to

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comprehend Plaintiff’s claims, on January 11, 2009, while housed at Avenal State Prison, Plaintiff

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was placed in administrative segregation because he was assaulting other inmates due to drug debts.

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On February 2, 2009, an investigation was conducted and in the same month an anonymous phone

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call was received falsely stating that Plaintiff’s life was in danger. Counselors Hernandez and Lopez

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reviewed the investigation and found the anonymous report to be false. The findings were reviewed

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by Defendants Contreras and Goodman who found the report to be false. Plaintiff was released to

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his regular population assignment in August of 2010. Mr. Vowel placed an additional chrono in

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Plaintiff’s file.

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During a classification review of Plaintiff’s file at Corcoran State Prison, time was not taken

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to review Plaintiff’s file and he was placed back on the sensitive needs yard. Plaintiff claims that
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he did not request to be placed on the sensitive needs yard, his life is not in danger, and he wants to

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be placed back into the general population. Plaintiff states that Defendant Pascillas at Corcoran State

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Prison has never addressed the situation and Defendant Fisher, property officer at Avenal State

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Prison has never received property that was lost and Plaintiff wants his property returned.

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III.

Discussion

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It is unclear from Plaintiff’s complaint what rights he alleges have been violated. Initially,

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the Court notes that although Plaintiff has been informed in two prior orders that he must show that

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the defendant personally participated in the deprivation of his rights, the second amended complaint

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fails to link any defendant to any act or failure to act that deprived Plaintiff of his federal rights.

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Jones v. Williams, 297 F.3d 930, 934.

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The Due Process Clause protects against the deprivation of liberty without due process of

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law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 2393 (2005). In order to state a cause

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of action for a deprivation of due process, a plaintiff must first identify a liberty interest for which

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the protection is sought. Id. The Due Process Clause does not confer a liberty interest in freedom

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from state action taken within a prisoner’s imposed sentence. Sandin v. Conner, 515 U.S. 472, 480,

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115 S. Ct. 2293, 2298 (1995). A prisoner has a liberty interest protected by the Due Process Clause

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only where the restraint “imposes atypical and significant hardship on the inmate in relation to the

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ordinary incidents of prison life.” Keenan v. Hall, 83 F.3d 1083, 1088 (9th Cir. 1996) (quoting

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Sandin, 515 U.S. at 484, 115 S. Ct. at 2300).

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The Due Process Clause itself does not confer on inmates a liberty interest in avoiding “more

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adverse conditions of confinement,” Wilkinson, 545 U.S. at 221; 125 S. Ct. at 2393, including “a

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liberty interest in freedom from administrative segregation,” Toussaint v. McCarthy, 801 F.2d 1080,

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1091 (9th Cir. 1985), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).

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Under state law the existence of a liberty interest created by prison regulations is determined by

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focusing on the nature of the condition of confinement in issue. Wilkinson, 545 U.S. at 221; 125

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S. Ct. at 2393. Plaintiff’s complaint shows that he was placed in administrative segregation because

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he was a danger to other inmates and was placed on the sensitive needs yard to protect Plaintiff.

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Plaintiff fails to set forth factual allegations sufficient to state a claim that the conditions of his
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placement in administrative segregation or on the sensitive needs yard implicated a liberty interest.

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Finally, while an authorized, intentional deprivation of property is actionable under the Due

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Process Clause, neither a negligent nor intentional unauthorized deprivation of property by a prison

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official is actionable if a meaningful postdeprivation remedy is available for the loss. Hudson v.

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Palmer, 468 U.S. 517, 533 (1984); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1984). Plaintiff

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alleges that his property was lost in the transfer between institutions. Whether the cause of the

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property loss was intentional and unauthorized or negligent, Due Process is satisfied if there is a

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meaningful postdeprivation remedy available to Plaintiff. Hudson, 468 U.S. at 533. Plaintiff has

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an adequate post-deprivation remedy available under California law. Barnett v. Centoni, 31 F.3d

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813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810-895). Therefore, Plaintiff has failed to

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state a cognizable claim for the loss of his property..

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IV.

Conclusion and Order

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Plaintiff’s complaint fails to state a claim upon which relief may be granted under section

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1983. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend ‘shall be freely

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given when justice so requires,’” Fed. R. Civ. P. 15(a), and “[l]eave to amend should be granted if

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it appears at all possible that the plaintiff can correct the defect,” Lopez v. Smith, 203 F.3d 1122,

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1130 (9th Cir. 2000) (internal citations omitted). However, in this action Plaintiff has been granted

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two opportunities to amend the complaint, with guidance by the Court. Plaintiff has now filed three

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complaints without alleging facts against any of the defendants sufficient to state a claim under §

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1983. The Court finds that the deficiencies outlined above are not capable of being cured by

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amendment, and therefore further leave to amend should not be granted.

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1915(e)(2)(B)(ii); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

28 U.S.C. §

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Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action is

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HEREBY DISMISSED, with prejudice, based on Plaintiff’s failure to state a claim upon which relief

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may be granted under section 1983 and the Clerk’s Office shall enter judgment. This dismissal is

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subject to the “three-strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, No. 08-

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15620, 2011 WL 4436248, at *4 (9th Cir. Sept. 26, 2011).

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IT IS SO ORDERED.
Dated:
10c20k

February 7, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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