Lopez-Galvan v. Rubio et al

Filing 17

ORDER RECOMMENDING Dismissal With Prejudice 16 , signed by Magistrate Judge Michael J. Seng on 11/27/13: Plaintiff's Objections, If Any, Due Within Thirty Days. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RENE LOPEZ-GALVAN,

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Plaintiff,

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CASE NO. 1:12-cv-00358-LJO-MJS
ORDER RECOMMENDING
WITH PREJUDICE

DISMISSAL

v.
(ECF NO. 16)
R. RUBIO, et al.,

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PLAINITFF‟S OBJECTIONS, IF ANY, DUE
WITHIN THIRTY (30) DAYS

Defendants.

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SCREENING ORDER
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I.

PROCEDURAL HISTORY

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Plaintiff Rene Lopez-Galvan, a federal prisoner proceeding pro se and in forma
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pauperis, filed this civil action on March 9, 2012, pursuant to Bivens v. Six Unknown
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Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides
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a remedy for the violation of civil rights by federal actors.
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On May 30, 2013, Plaintiff‟s Complaint was screened and dismissed, with leave to
amend, for failure to state a cognizable claim. (ECF No. 13.) Plaintiff‟s First Amended

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Complaint (ECF No. 16) is now before the Court for screening.
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II.

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, malicious,” or 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

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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The First Amended Complaint identifies the following individuals as Defendants:

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(1) S. Rubio, Business Office Manager, United States Penitentiary, Atwater (Atwater); (2)

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D. Chavez, Education Specialist, Atwater; (3) Daniels, Unit Counselor, Atwater; (4)

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Lyons, Unit Counselor, Atwater; (5) G. Cobb, Lieutenant, Atwater; (6) Dennis Wong,

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Deputy Regional Counsel, Bureau of Prisons (BOP); (7) Harlan W. Penn, Regional

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Counsel, BOP; and (8) John Does 1-5, Correctional Officers, Atwater.

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Plaintiff alleges the following:

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On June 20, 2008, Atwater was placed on lockdown following the death of an

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officer. A facility-wide search was conducted on July 7, 2008, and items belonging to

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Plaintiff were designated as contraband and seized.

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confiscation slips.

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acknowledging the seizure of inmate property and outlining the process for inmates to

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reclaim personal property. The lockdown ended on September 8, 2008. Two days later

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Defendants Daniels and Lyons told prisoners that each inmate would be called, one by

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one, to claim confiscated property.

Defendant Rubio signed the

On July 8, 2008, Defendant Cobb issued a memorandum

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On September 15, 2008, a second lockdown was imposed because of serious

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inmate violence. Another search was conducted on October 2, 2008, and additional

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items of Plaintiff‟s property were seized. Defendant Chavez signed the confiscation slip.

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Plaintiff was transferred from Atwater to United States Penitentiary, Coleman

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(Coleman) on November 8, 2008. Plaintiff‟s personal property followed on January 9,

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2009, but the items seized during the two searches at Atwater were missing. (Compl. at

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4.) Plaintiff‟s case manager at Coleman emailed Defendants Daniels and Lyons about

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the missing property. Daniels responded saying that he would forward the items, but

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the property was not returned.

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On February 12, 2009, Plaintiff requested a personal property record from

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Atwater. On March 5, 2009, Plaintiff filed two administrative remedy requests seeking

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return of his property. (Id. at 5.) The prison responded, “Many attempts have been

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made on your behalf to locate your property. I suggest that you file a tort claim.” (Id. at

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7, 22.) On May 5, 2009, Plaintiff filed a third administrative remedy request. (Id. at 5.)

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The prison officials‟ response stated that Atwater officials “no longer have any

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confiscated property belonging to [Plaintiff]” and recommended that Plaintiff file a tort

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claim through the Bureau of Prisons regional office. (Id. at 5, 24.)

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Plaintiff requested a 31 U.S.C. § 3723 small claims form on June 2, 2009. None

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were available in the prison library. No claim forms were available on July 1, 2009.

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Plaintiff was provided with a claims form on July 27, 2009, and Defendants Wong and

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Penn received the claim on August 11, 2009. (Id. at 5.) Plaintiff‟s claims were denied as

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time barred and because no evidence of negligence or misconduct was discovered. (Id.

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at 5, 30-35.)

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Plaintiff asserts a violation of his Fifth Amendment right to procedural due process

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and unspecified violations of his Fourth, Ninth, and Fourteenth Amendment rights.

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IV.

ANALYSIS

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A.

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct.

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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.‟” Id. Facial plausibility demands more than the mere possibility

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that a defendant committed misconduct and, while factual allegations are accepted as

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true, legal conclusions are not. Id. at 1949-50.

Bivens Pleading Standard

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Bivens actions and actions under 42 U.S.C. § 1983 “are identical save for the

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replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum

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v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Under Bivens, a plaintiff may sue a federal

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officer in his or her individual capacity for damages for violating the plaintiff's

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constitutional rights. See Bivens, 403 U.S. at 397. To state a claim a plaintiff must

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allege: (1) that a right secured by the Constitution of the United States was violated, and

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(2) that the alleged violation was committed by a federal actor.

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B.

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The Due Process Clause protects prisoners from being deprived of property

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without due process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and prisoners

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have a protected interest in their personal property, Hansen v. May, 502 F.2d 728, 730

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(9th Cir. 1974). However, while an authorized, intentional deprivation of property is

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actionable under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.

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13 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982)); Quick

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v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), neither negligent nor unauthorized

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intentional deprivations of property by a governmental employee “constitute a violation of

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the procedural requirements of the Due Process Clause of the Fourteenth Amendment if
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Due Process

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a meaningful postdeprivation remedy for the loss is available,” Hudson, 468 U.S. at 533;

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

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

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to the federal government through the Fifth Amendment.”).

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The deprivation of Plaintiff's property began as an authorized deprivation

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performed pursuant to a facility lockdown. However, Plaintiff characterizes the loss of

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his property after its initial seizure as unauthorized, and alleges the Defendants failed to

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adhere to various subsections of applicable BOP policy. (Compl. at 2, 4.) The alleged

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loss or destruction, then, was unauthorized. Plaintiff also alleges that he was provided

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with a post-deprivation administrative remedy which he pursued by filing claims with the

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Bureau of Prisons. Those claims were adjudicated.

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Given the availability of this post-deprivation remedy to Plaintiff, the Court finds

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that, based on the facts alleged, there is no due process violation to support this Bivens

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action. See, e.g., Marulanda v. U.S. Marshals Service, 467 F. App‟x. 590 (9th Cir. 2012)

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(Bivens claim precluded by availability of prison administrative remedy program for post-

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deprivation remedy). The Court previously notified Plaintiff of this pleading deficiency

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and gave him an opportunity to amend. He did not amend in a manner to state a

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cognizable claim. Further leave to amend would be purely repetitive, futile and will not be

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granted.

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C.

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Plaintiff alleges that the Defendants are responsible for violations of rights

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afforded to him by the Fourth, Ninth, and Fourteenth Amendments. The First Amended

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Complaint does not specify exactly what rights were violated, how, or by which

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Defendants..

Unspecified Claims

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Plaintiff cannot state a Fourth Amendment claim based on the searches of his cell

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because prisoners have no Fourth Amendment right to privacy in their cells. Hudson,

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468 U.S. at 525–26. Plaintiff‟s “Ninth Amendment argument is meritless, because that

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amendment has not been interpreted as independently securing any constitutional rights
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for purposes of making out a constitutional violation.” Schowengerdt v. United States,

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944 F.2d 483, 490 (9th Cir. 1991).

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Amendment. As a federal prisoner Plaintiff‟s due process and equal protection rights are

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guaranteed by the Fifth Amendment. Castillo v. McFadden, 399 F.3d 993, 1002 n. 5

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(9th Cir. 2005); Consejo De Desarrollo Economico De Mexicali, A. C. v. United States,

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482 F.3d 1157, 1170 n.4 (9th Cir. 2007) (citing Bolling v. Sharpe, 347 U.S. 497 (1954)).

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Plaintiff‟s due process claim is addressed above and his allegations give no indication

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that he suffered an equal protection violation.

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V.

Plaintiff invokes protections of the Fourteenth

CONCLUSION AND RECOMMENDATION

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Plaintiff‟s First Amended Complaint does not state a cognizable claim against the

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named Defendants. Accordingly, it is HEREBY RECOMMENDED that this action be

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dismissed with prejudice for failure to state a claim.

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These Findings and Recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §

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636(b)(l).

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Recommendations, Plaintiff may file written objections with the Court. The document

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should be captioned “Objections to Magistrate Judge‟s Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may waive the

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right to appeal the District Court‟s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Within thirty (30) days after being served with these Findings and

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IT IS SO ORDERED.
Dated:

November 27, 2013

/s/

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UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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Michael J. Seng

ci4d6

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