Bolds v. Cavazos et al

Filing 11

ORDER DISMISSING CASE (Strike), With Prejudice, For Failure To State A Claim Upon Which Relief May Be Granted Under § 1983 (Doc. 9 ), ORDER That This Dismissal Is Subject To The "Three Strikes" Provision Of 28 U.S.C. § 1915(g), ORDER Directing Clerk To Close Case, signed by Magistrate Judge Gary S. Austin on 1/9/2014. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIE BOLDS,

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ORDER DISMISSING CASE, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED UNDER § 1983
(Doc. 9.)

Plaintiff,

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1:12-cv-01754-GSA-PC

vs.
J. CAVAZOS, et al.,
Defendants.

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ORDER THAT THIS DISMISSAL IS
SUBJECT TO THE “THREE STRIKES”
PROVISION OF 28 U.S.C. § 1915(g)

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ORDER DIRECTING CLERK TO CLOSE
CASE

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I.

BACKGROUND

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Willie Bolds (APlaintiff@) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on October

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29, 2012. (Doc. 1.)

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On November 7, 2012, Plaintiff consented to Magistrate Judge jurisdiction in this action

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pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (Doc. 5.)

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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
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The court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an order

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on March 21, 2013, dismissing the Complaint for failure to state a claim, with leave to amend.

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(Doc. 8.) On April 24, 2013, Plaintiff filed the First Amended Complaint, which is now before

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the court for screening. (Doc. 9.)

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II.

SCREENING REQUIREMENT

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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).

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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally Afrivolous 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). ANotwithstanding 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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appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa short and plain statement of the claim showing

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

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are not required, but A[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, 556 U.S. 662, 678, 129 S.Ct.

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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

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unwarranted inferences,@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere

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possibility of misconduct falls short of meeting this plausibility standard. Id. at 678-79; Moss

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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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Plaintiff is presently incarcerated at California State Prison-Lancaster in Lancaster,

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California. The events at issue in the First Amended Complaint allegedly occurred at Corcoran
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State Prison in Corcoran, California, when Plaintiff was incarcerated there. Plaintiff names as

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defendants J. Cavazos (Chief Deputy Warden), F. Field III (Associate Warden), Sergeant J.

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Gonzales, R. Davis (Appeals Examiner), and J. D. Lozano (Chief of Inmate Appeals).

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Plaintiff’s factual allegations follow.

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On February 10, 2012, under the supervision of Sergeant J. Gonzales, prison officials

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used a well-established state procedure to unreasonably seize and dispose of Plaintiff’s

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television set. Plaintiff was using the television set in the practice of his sincere Christian

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religious beliefs, and loss of the television set “substantially burden[s]” Plaintiff. (ACP, Doc. 9

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at 3 ¶IV.)
On February 15, 2012, Plaintiff filed an inmate grievance, and on March 15, 2012, he

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received a First Level response by Sgt. J. Gonzales.

By his response, Sgt. J. Gonzales

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improperly participated in two capacities in the same event being appealed, as the supervisor of

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the event being grieved, and as the reviewer. Plaintiff alleges that by these actions, Sgt. J.

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Gonzales violated Plaintiff’s rights under the First and Fourth Amendments.

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Defendants F. Field III (Associate Warden), J. Cavazos (Chief Deputy Warden), R.

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Davis (Appeals Examiner), and J. D. Lozano (Chief of Inmate Appeals) subsequently reviewed

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Plaintiff’s appeal at the First, Second, and Third Levels of review and failed to address the fact

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that Sgt. J. Gonzales improperly participated in the appeal in two capacities. Plaintiff alleges

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that by their omission, these defendants also violated Plaintiff’s rights under the First and

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Fourth Amendments.
Plaintiff requests monetary damages as relief.

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IV.

PLAINTIFF’S CLAIMS
The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to 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. ASection 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. 1997)

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law and (2) the defendant deprived him of rights secured by the

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Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

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2006). AA person >subjects= another to the deprivation of a constitutional right, within the

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meaning of section 1983, if he does an affirmative act, participates in another=s affirmative acts,

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or omits to perform an act which he is legally required to do that causes the deprivation of

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which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). AThe

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requisite causal connection can be established not only by some kind of direct, personal

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participation in the deprivation, but also by setting in motion a series of acts by others which

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the actor knows or reasonably should know would cause others to inflict the constitutional

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injury.@ Id. at 743-44).

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A.

Deprivation of Personal Property

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Due Process Claim

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The Due Process Clause of the Fourteenth Amendment protects prisoners from being

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deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S.

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539, 556 (1974). In order to state a cause of action for deprivation of procedural due process, a

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plaintiff must first establish the existence of an interest for which the protection is sought.

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

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728, 730 (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.13, 104

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S.Ct. 3194 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct.

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1148 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), A[a]n unauthorized

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intentional deprivation of property by a state employee does not constitute a violation of the
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procedural requirements of the Due Process Clause of the Fourteenth Amendment if a

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meaningful postdeprivation 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 '' 810-895; 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 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

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action accrues.

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Presentation of a written claim, and action on or rejection of the claim are conditions precedent

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to suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245, 90 P.3d 116,

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124, 13 Cal.Rptr.3d 534, 543 (2004); Mangold v. California Pub. Utils. Comm=n, 67 F.3d 1470,

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1477 (9th Cir. 1995). To state a tort claim against a public employee, a plaintiff must allege

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compliance with the Tort Claims Act. State v. Superior Court, 32 Cal.4th at 1245, 90 P.3d at

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124, 13 Cal.Rptr.3d at 543; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police

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Dept., 839 F.2d 621, 627 (9th Cir. 1988).

Cal. Gov=t Code '' 905.2, 910, 911.2, 945.4, 950-950.2 (West 2006).

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Plaintiff alleges that Sgt. J. Gonzales improperly confiscated his personal property,

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which indicates that the deprivation of property was intentional and unauthorized. Thus,

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Plaintiff=s remedy would be found under California law. Plaintiff fails to show compliance

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with the California Tort Claims Act, and therefore his property claim is not cognizable under

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federal or state law. Therefore, Plaintiff fails to state a claim for violation of due process for

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deprivation of property.

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Fourth Amendment Claim

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Plaintiff’s Fourth Amendment claim fails as a matter of law because Plaintiff does not

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have a right to be free from the search and seizure of his personal property. Hudson, 468 U.S.

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at 536; Taylor v. Knapp, 871 F.2d 803, 806 (9th Cir. 1989) (“Lawful incarceration necessarily

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entails limitations upon many of the rights enjoyed by ordinary citizens. Hudson, supra, 468

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U.S. at 524, 104 S.Ct. at 3199; Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41

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L.Ed.2d 495 (1974). An inmate's fourth amendment rights are among the rights subject to
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curtailment. In particular, the fourth amendment does not protect an inmate from the seizure

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and destruction of his property. Hudson, supra, 468 U.S. at 528 n. 8, 104 S.Ct. at 2808 n. 8.”)

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B.

Religious Rights Claim

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First Amendment – Free Exercise Claim

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AInmates . . . retain protections afforded by the First Amendment, including its directive

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that no law shall prohibit the free exercise of religion.@ O=Lone v. Estate of Shabazz, 482 U.S.

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342, 348 (1987) (internal quotations and citations omitted).

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Exercise Clause are triggered when prison officials substantially burden the practice of an

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inmate=s religion by preventing him from engaging in conduct which he sincerely believes is

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consistent with his faith. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); Freeman v.

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Arpaio, 125 F.3d 732, 737 (9th Cir. 1997), overruled in part by Shakur, 514 F.3d at 884-85.

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Plaintiff is entitled to a reasonable opportunity to practice his religion. Cruz v. Beto, 405 U.S.

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319, 322 (1972). The Constitution does not require prison officials to immediately accede to

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every request for accommodation that happens to be based in religion. “‘Lawful incarceration

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brings about the necessary withdrawal or limitation of many privileges and rights, a retraction

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justified by the considerations underlying our penal system.’” Id. (quoting Price v. Johnson,

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334 U.S. 266, 285 (1948)). “In order to establish a free exercise violation, [a prisoner] must

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show the defendants burdened the practice of his religion, by preventing him from engaging in

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conduct mandated by his faith, without any justification reasonably related to legitimate

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penological interests.”

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constitutional violation, the interference with one’s practice of religion ‘must be more than an

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inconvenience; the burden must be substantial and an interference with a tenet or belief that is

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central to religious doctrine.’” Id. at 737 (quoting Graham v. C.I.R., 822 F.2d 844, 851 (9th Cir.

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1987)).

Freeman, 125 F.3d at 736.

The protections of the Free

“In order to reach the level of a

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Here, Plaintiff fails to allege facts suggesting that his ability to exercise his religious

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beliefs was substantially burdened. AThreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.@ Iqbal, 556 U.S. at 678. That

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Plaintiff’s ability to receive religious programming through television has been denied him
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does not, of itself, constitute a substantial burden. Plaintiff fails to allege any facts suggesting

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that any of the Defendants are preventing him from exercising his religious beliefs by denying

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him access to other opportunities, such as access to chaplains or religious services. Although

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prisoners are protected in their religious belief, there is no constitutionally guaranteed right to

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religious programming or other uses of television in the practice of religion.

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Plaintiff fails to state a claim for violation of his rights to freely exercise religion under the First

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Amendment.

Therefore,

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RLUIPA Claim

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The Religious Land Use and Institutionalized Persons Act of 2000 (ARLUIPA@)

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provides:

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No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . ,
even if the burden results from a rule of general applicability,
unless the government demonstrates that imposition of the burden
on that personB

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(1) is in furtherance of a compelling government interest; and

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(2) is the least restrictive means of furthering that compelling
government interest.

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42 U.S.C. ' 2000cc-1. To state a RLUIPA claim, a plaintiff must allege facts demonstrating

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that a defendant substantially burdened the exercise of his religious beliefs. Warsoldier v.

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Woodford, 418 F.3d 989, 994-95 (9th Cir. 2005). In any RLUIPA claim, one must first

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identify the Areligious exercise@ allegedly impinged upon, and then must ask whether the prison

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regulation at issue Asubstantially burdens@ that religious exercise. Greene v. Solano County

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Jail, 513 F.3d 982, 987 (9th Cir. 2008).

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Here, Plaintiff alleges that Sgt. J. Gonzales confiscated his television set, which Plaintiff

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was using in the practice of his Christian religion. As discussed above, Plaintiff has not alleged

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facts showing that the deprivation of the television set substantially burdened his ability to

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practice his religion. Therefore, the court finds that Plaintiff fails to state a claim for relief

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under RLUIPA.

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C.

Inmate Appeals Process

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Plaintiff alleges that Defendants failed to respond properly to his inmate appeals.

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Defendants= actions in responding to Plaintiff=s appeals, alone, cannot give rise to any claims

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for relief under section 1983 for violation of due process. A[A prison] grievance procedure is a

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procedural right only, it does not confer any substantive right upon the inmates.@ Buckley v.

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Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10

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(N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty

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interest in processing of appeals because no entitlement to a specific grievance

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procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance

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procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988). AHence, it does not give rise to a protected liberty interest requiring the procedural

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protections envisioned by the Fourteenth Amendment.@ Azeez, 568 F. Supp. at 10; Spencer v.

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Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). Actions in reviewing a prisoner=s

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administrative appeal, without more, are not actionable under section 1983. Buckley, 997 F.2d

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at 495. Thus, since he has neither a liberty interest, nor a substantive right in inmate appeals,

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Plaintiff fails to state a cognizable claim for the processing and/or reviewing of his 602 inmate

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appeals.

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V.

CONCLUSION AND ORDER

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The Court finds that Plaintiff=s First Amended Complaint fails to state any claims upon

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which relief can be granted under ' 1983 against any defendant. In this action, the court

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previously granted Plaintiff an opportunity to amend the complaint, with ample guidance by the

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court. Plaintiff has now filed two complaints without alleging facts against any defendant

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which state a claim under ' 1983. The court finds that the deficiencies outlined above are not

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capable of being cured by amendment, and therefore further leave to amend should not be

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granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Therefore, IT IS HEREBY ORDERED that:

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Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e), this action is

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DISMISSED with prejudice for failure to state a claim upon which relief may be

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granted under ' 1983;

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2.

1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011); and

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This dismissal is subject to the Athree-strikes@ provision set forth in 28 U.S.C. '

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The Clerk is directed to close this case.

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IT IS SO ORDERED.

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Dated: January 9, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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