Hubbs v. Mayberg et al

Filing 12

ORDER DISMISSING Action for Failure to State a Claim upon which Relief could be Granted signed by Magistrate Judge Gary S. Austin on 10/30/2013. CASE CLOSED. (Sant Agata, S)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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NORMAN HUBBS,

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Plaintiff,

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v.

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STEPHEN MAYBERG, et al.,

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Defendants.

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1:10-cv-02218 GSA
ORDER DISMISSING ACTION
FOR FAILURE TO STATE A CLAIM
UPON WHICH RELIEF COULD BE
GRANTED

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I.

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Screening Requirement
Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction

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pursuant to 28 U.S.C. § 636(c).1

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

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

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The Court must dismiss a complaint or portion thereof if the individual has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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Plaintiff filed his consent to proceed before a magistrate judge on December 17, 2010 (ECF No. 5).
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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §

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1915(e)(2)(B)(ii).

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II.

Plaintiff’s Claims

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A.

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Plaintiff currently resides at Coalinga State Hospital. Plaintiff names as defendants in

Summary of Complaint

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this action Stephen Mayberg, Director of the California Department of Mental Health and

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Pamela Ahlin, Executive Director of Coalinga State Hospital. Plaintiff’s claim is “the

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unconstitutional taking of money and property by defendants Stephen Mayberg and Pamela

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Ahlin, from plaintiff Norman Hubbs, under the guise of administrative authority and under the

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color of law where no such authority or law exists.”

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Specifically, Plaintiff alleges that he has been and continues to be charged ten cents per

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page for copies of laboratory test results which are required to be provided to him pursuant to

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California Health and Safety Code Section 123148(i).2 Plaintiff’s construction of the statute, that

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he has a right to receive free copies of his test results in a written form, is the basis of his claim

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that he has been deprived of property in violation of the Fourth, Fifth and Fourteenth

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Amendments.

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B.

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Plaintiff has a protected interest in his personal property. Hansen v. May, 502 F.2d 728,

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Deprivation of Property

730 (9th Cir. 1974). However, [a]n unauthorized intentional deprivation of property by a state

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employee does not constitute a violation of the procedural requirements of the Due Process

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Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is

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available.” See Hudson v. Palmer,468 U.S. 517, 532, n.13 (1984)(citing Logan v. Zimmerman

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Brush Co., 455 U.S. 435-36 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985).

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Section 123148(i) provides that a patient may not be required to pay for test results received in forms other than
internet posting or other electronic format.
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California law provides an adequate post-deprivation remedy for any property
deprivations. See Cal. Gov’t Code §§ 810-895; Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir.

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

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employees be presented to the California Victim Compensation and Government Claims Board,

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

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accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950-950.2 (West 2006). Presentation of a

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written claim, and action on or rejection of the claim are conditions precedent to the suit. State

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v. Superior Court of Kings County Bodde, 32 Cal. 4th 1243, 1245 (2004); Mangold v. California

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Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against a public

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employee, a plaintiff must allege compliance with the Tort Claims Act. State v. Superior Court,

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32 Cal.4th at 1245; Mangold, 67 F.3d at 1477.

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To the extent that Plaintiff alleges the

confiscation of his property was unauthorized and intentional, Plaintiff’s remedy would be found

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under California law.
III.

Conclusion and Order

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Plaintiff’s complaint does not state a cognizable claims under section 1983. Plaintiff’s

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claims arises from his allegation that he was charged a fee for copies of his medical records in

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violation of state law. Plaintiff specifically claims an unauthorized deprivation of his property.

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Plaintiff’s remedy is available under California law. Because the Court finds that this deficiency

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is not capable of being cured by amendment, the Court HEREBY ORDERS that this action is

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dismissed, with prejudice, for failure to state a claim. Noll v. Carlson, 809 F.2d 1446, 1448-49

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(9th Cir. 1987). The Clerk is directed to close this case.

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IT IS SO ORDERED.

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Dated:

October 30, 2013

/s/ Gary S. Austin

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UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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