Rosas v. Denny et al

Filing 7

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, For Failure to State a Cognizable Claim for Relief, signed by Magistrate Judge Stanley A. Boone on 12/5/2014. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FEDERICO ROSAS, 12 13 14 15 16 17 18 Plaintiff, v. D. DENNY, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Case No.: 1:14-cv-01418-SAB (PC) ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF No. 1] Plaintiff Federico Rosas is appearing pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the instant complaint on September 11, 2014. 19 I. 20 SCREENING REQUIREMENT 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 24 “frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks 25 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 26 A complaint must contain “a short and plain statement of the claim showing that the pleader is 27 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 28 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 1 1 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 2 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally 3 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County, 4 Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010). 5 Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings 6 liberally construed and to have any doubt resolved in their favor, but the pleading standard is now 7 higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive 8 screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow 9 the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 10 556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer 11 possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely 12 consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556 13 U.S. at 678; Moss, 572 F.3d at 969. 14 II. 15 COMPLAINT ALLEGATIONS 16 Plaintiff names D. Denny, M. Seaman, and S. Tallerico as Defendants. 17 Plaintiff contends that Defendants violated his constitutional rights by cancelling his inmate 18 appeals without justification. Plaintiff contends Defendants seem to be retaliating against him for 19 taking legal action by using the inmate grievance procedure to file a claim in the court regarding the 20 loss of his personal property. 21 III. 22 DISCUSSION 23 A. Inmate Grievance Process 24 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of 25 life, liberty, or property; and those who seek to invoke its procedural protection must establish that one 26 of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Plaintiff does not a 27 have protected liberty interest in the processing his appeals, and therefore, he cannot pursue a claim 28 2 1 for denial of due process with respect to the handling or resolution of his appeals. Ramirez v. Galaza, 2 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). 3 Plaintiff contends that Defendants have canceled and/or rejected his inmate appeals in 4 retaliation for being a “litigator.” Defendants’ actions in responding and/or processing Plaintiff’s 5 appeals, alone, cannot give rise to any claims for relief under section 1983 for violation of due process. 6 Accordingly, Plaintiff fails to state a cognizable claim for relief based upon the inmate appeals 7 process. 8 B. Access to the Court 9 Plaintiff has a constitutional right of access to the courts and prison officials may not actively 10 interfere with his right to litigate. Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011). 11 However, to state a viable claim for relief, Plaintiff must allege he suffered an actual injury, which is 12 actual prejudice with respect to contemplated or existing litigation. Nevada Dep’t of Corr. v. Greene, 13 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis v. Casey, 518 U.S. 343, 348 (1996)) (quotation 14 marks omitted). Actual injury is “actual prejudice with respect to contemplated or existing litigation.” 15 Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis v. Casey, 518 16 U.S. 343, 348 (1996)) (internal quotation marks omitted). 17 Plaintiff fails to state a claim against any Defendants for denial of access to the courts. 18 Plaintiff has not alleged sufficient facts which indicate that he suffered an actual injury with respect to 19 contemplated or existing litigation. Any claim by Plaintiff that his present ability to file a civil rights 20 complaint pursuant to 42 U.S.C. § 1983, was impeded no such claim can exist as Plaintiff has filed and 21 this Court has reviewed the instant complaint. Accordingly, Plaintiff fails to state a cognizable claim 22 for relief. 23 C. 24 “Prisoners have a First Amendment right to file grievances against prison officials and to be Retaliation 25 free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing 26 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Also protected by the First Amendment is the 27 right to pursue civil rights litigation in federal court without retaliation. Silva v. Di Vittorio, 658 F.3d 28 1090, 1104 (9th Cir. 2011). “Within the prison context, a viable claim of First Amendment retaliation 3 1 entails five basic elements: (1) An assertion that a state actor took some adverse action against an 2 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 3 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a 4 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 5 Here, Plaintiff has neither alleged nor shown that he was ever threatened with retaliation as a 6 result of filing—or to stop him from filing—a grievance. Plaintiff makes only the bare assertion that 7 he was retaliated against for filing grievances. Accordingly, Plaintiff fails to state a cognizable claim 8 for relief. 9 D. Loss of Personal Property 10 The Due Process Clause protects prisoners from being deprived of property without due 11 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Prisoners have a protected interest in 12 their personal property. Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). However, while an 13 authorized, intentional deprivation of property is actionable under the Due Process Clause, see Hudson 14 v. Palmer, 468 U.S. 517, 532 n.13 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 435- 15 436 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), neither negligent nor unauthorized 16 intentional deprivations of property by a governmental employee “constitute a violation of the 17 procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful 18 postdeprivation remedy for the loss is available,” Hudson, 468 U.S. at 533. For an unauthorized deprivation of property, Plaintiff would have to allege that he lacks a 19 20 meaningful state tort remedy for any unauthorized property deprivation (i.e., a deprivation not 21 authorized by properly adopted regulations, procedures and policies). Plaintiff should note that for 22 unauthorized deprivations of property, he does have an adequate post-deprivation remedy under 23 California law and therefore, any attempt to pursue a claim under federal law for unauthorized taking 24 of his property fails as a matter of law. Barnett v. Centoni, 31 F.3d 813, 816-817 (9th Cir. 1994) 25 (citing Cal. Gov’t Code §§ 810-895.) Plaintiff does not allege whether his property deprivation was authorized or unauthorized. 26 27 Thus, the facts, as alleged by Plaintiff, fail to give rise to a cognizable claim for relief. 28 /// 4 1 D. 2 Plaintiff makes vague reference to the actions taken by Defendants causing cruel and unusual 3 Cruel and Unusual Punishment punishment upon him. The Eighth Amendment’s prohibition against cruel and unusual punishment protects prisoners 4 5 not only from inhumane methods of punishment but also from inhumane conditions of confinement. 6 Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 7 847, 114 S.Ct. 1970 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (1981)) 8 (quotation marks omitted). While conditions of confinement may be, and often are, restrictive and 9 harsh, they must not involve the wanton and unnecessary infliction of pain. Morgan, 465 F.3d at 1045 10 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted). Thus, conditions which are devoid of 11 legitimate penological purpose or contrary to evolving standards of decency that mark the progress of 12 a maturing society violate the Eighth Amendment. Morgan, 465 F.3d at 1045 (quotation marks and 13 citations omitted); Hope v. Pelzer, 536 U.S. 730, 737, 122 S.Ct. 2508 (2002); Rhodes, 452 U.S. at 346. 14 To maintain an Eighth Amendment claim, a prisoner must show that prison officials were deliberately 15 indifferent to a substantial risk of harm to his health or safety. Farmer, 511 U.S. at 847; Thomas v. 16 Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir. 17 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. Agnos, 152 F.3d 1124, 1128 (9th 18 Cir. 1998). Plaintiff has alleged no facts that give rise to a claim for cruel and unusual punishment. 19 20 Accordingly, Plaintiff fails to state a claim for relief under the Eighth Amendment. 21 IV. 22 CONCLUSION AND ORDER 23 For the reasons stated, Plaintiff’s complaint fails to state a claim upon which relief may be 24 granted. Plaintiff is granted leave to file an amended complaint within thirty (30) days. Noll v. 25 Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by 26 adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 27 2007) (no “buckshot” complaints). 28 /// 5 1 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each 2 named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights. 3 Iqbal, 556 U.S. 662, 678. “The inquiry into causation must be individualized and focus on the duties 4 and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a 5 constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as 6 true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . 7 . .” Twombly, 550 U.S. at 555 (citations omitted). 8 Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc., 9 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be 10 “complete in itself without reference to the prior or superseded pleading,” Local Rule 220. “All 11 causes of action alleged in an original complaint which are not alleged in an amended complaint are 12 waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 13 1981)); accord Forsyth, 114 F.3d at 1474. 14 Based on the foregoing, it is HEREBY ORDERED that: 15 1. The Clerk’s Office shall send Plaintiff an amended civil rights complaint form; 16 2. Plaintiff’s complaint, filed September 11, 2014, is dismissed for failure to state a claim; 17 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint; and 18 4. 19 If Plaintiff fails to file an amended complaint in compliance with this order, this action will be dismissed, with prejudice, for failure to state a claim. 20 21 22 IT IS SO ORDERED. 23 Dated: 24 December 5, 2014 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 6

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