Krzysztof Wolinski v. Acosta et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that That This Action Be Dismissed For Failure To State A Claim Upon Which Relief May Be Granted And That This Action Count As A Strike Under 28 U.S.C. § 1915(g), Objections Due In Thirty Days (Doc. 17 ), signed by Magistrate Judge Stanley A. Boone on 11/19/2015. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 12/24/2015. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KRZYSTOF WOLINSKI,
Plaintiff,
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FINDINGS AND RECOMMENDATION
THAT THIS ACTION BE DISMISSED FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF MAY BE GRANTED
AND THAT THIS ACTION COUNT AS A
STRIKE UNDER 28 U.S.C. §1915(g).
v.
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Case No. 1:15-cv-00519-LJO-SAB-PC
N. ACOSTA, et al.,
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Defendants.
OBJECTIONS DUE IN THIRTY DAYS
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C.
21 § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §
22 636(1)(B) and Local Rule 302. Currently before the Court is Plaintiff’s complaint, filed April 3,
23 2015.
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I.
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ALLEGATIONS
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This action proceeds on the November 6, 2015, first amended complaint filed in response
27 to an earlier order dismissing the original complaint and granting Plaintiff leave to file an
28 amended complaint.
In the order dismissing the original complaint, the Court noted the
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1 following allegations. Plaintiff alleged that on April 4, 2014, Defendants Acosta and Zepeda
2 were assigned as transportation officers for Plaintiff’s transfer from CSP Corcoran to Kern
3 Valley State Prison. Prior to loading Plaintiff into the van, Defendants ordered Plaintiff to
4 surrender his prescription eyeglasses for security reasons. Upon arrival at Kern Valley State
5 Prison, Plaintiff asked for his glasses. Plaintiff alleged that “both correct. offic. swiftly left
6 living (sic) behind my bag with medications but no Rx’s glasses which they stoled (sic) from me
7 on 04-04-2014. Unfortunately they forgot that property inventory form CDC 1083 was issued to
8 me.” (Compl. ¶ IV.) Plaintiff alleged that Sgt. Hernandez “maliciously denied my 602 &
9 perjured my medical chrono CDCR 7410.”
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II.
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DISCUSSION
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A.
Deprivation of Property
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The Due Process Clause protects prisoners from being deprived of property without due
14 process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and prisoners have a protected
15 interest in their personal property Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). However,
16 while an authorized, intentional deprivation of personal property is actionable under the Due
17 Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532 n. 13 (1984)(citing Logan v.
18 Zimmerman Brush Co., 455 U.S. 422 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir.
19 1985), neither negligent nor unauthorized intentional deprivations of property by a state
20 employee “constitute a violation of the procedural requirements of the Due Process Clause of the
21 Fourteenth Amendment if a meaning post-deprivation remedy for the loss is available.” Hudson,
22 468 U.S. at 533. California law provides an adequate post-deprivation remedy for any property
23 deprivations. Barnett v. Centoni, 31 F.3d 813, 816-817 (9th Cir. 1994)(citing Cal. Gov’t Code
24 §§ 810-995).
In the order dismissing the original complaint, Plaintiff was advised that the
25 allegations of the complaint clearly indicated an unauthorized deprivation of property. Because
26 California has an adequate post-deprivation remedy, Plaintiff cannot state a claim for relief on
27 his claim regarding the loss of his prescription eyeglasses. In the first amended complaint,
28 Plaintiff re-states, in greater detail, the allegations of the original complaint. The allegations of
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1 the first amended complaint clearly indicate that the deprivation of Plaintiff’s property was
2 unauthorized. Because there is an adequate post-deprivation remedy under California law, this
3 claim must be dismissed.
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B.
Eighth Amendment
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The Court noted that Plaintiff may, however, hold Defendants liable if he alleges facts
6 indicating that depriving Plaintiff of his eyeglasses was intentional and caused him serious
7 injury.
In order to violate the Eighth Amendment proscription against cruel and unusual
8 punishment, there must be a “deliberate indifference to serious medical needs of prisoners.”
9 Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)( quoting Estelle v. Gamble, 429 U.S. 97,
10 104 (1976)). Lopez takes a two-prong approach to evaluating whether medical care, or lack
11 thereof, rises to the level of deliberate indifference. First, a court must examine whether the
12 plaintiff’s medical needs were serious. See Id.
Second, a court must determine whether
13 “officials intentionally interfered with [the plaintiff’s] medical treatment.” Id. at 1132.
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In the original complaint, Plaintiff had not alleged any facts that satisfied either prong.
15 There were no facts alleged indicating that taking Plaintiff’s prescription eyewear was
16 intentional. Plaintiff’s own allegations indicated that they were taken for security reasons. There
17 were no facts alleged indicating that either Acosta or Zepeda knew that Plaintiff had an
18 objectively serious medical condition or that taking Plaintiff’s eyeglasses would case or
19 exacerbate serious injury. The Court therefore dismissed the Eighth Amendment claim with
20 leave to amend.
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In the first amended complaint, Plaintiff indicates that the glasses that were taken from
22 him included “1 pair of Ray Ban, and 1 pair of PT-36 dark Rx glasses to prevent seizures.” (Am.
23 Compl. 3:20.) A simple reference to the deprivation of a medical appliance does not, of itself,
24 state a claim for relief under the Eighth Amendment. Plaintiff was specifically advised that he
25 failed to allege facts indicating that taking Plaintiff’s eyeglasses exacerbated a serious medical
26 condition. An allegation that Defendants took Plaintiff’s glasses, without any allegations that
27 such action caused an objectively serious injury, fails to state a claim.
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C.
Grievance Process
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The only conduct charged to Sgt. Hernandez was his participation in the grievance
3 process. There is no liberty interest in a prison grievance procedure as it is a procedural right
4 only. Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Buckley v. Barlow, 997 F.2d 494, 495
5 (8th Cir. 1993). The prison grievance process does not confer any substantive rights upon
6 inmates and actions in reviewing appeals cannot serve as a basis for liability under section 1983.
7 Buckley, 997 F.2d at 495. Plaintiff’s allegations as to Defendant Hernandez were therefore
8 dismissed with leave to amend. In the first amended complaint, Plaintiff fails to allege any
9 allegations indicating that Defendant Hernandez engaged in any other conduct.
Because
10 Defendant Hernandez’s only conduct was his participation in the grievance process, he must be
11 dismissed from this action.
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III.
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CONCLUSION AND ORDER
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For the reasons stated, Plaintiff’s November 6, 2015, first amended complaint fails to
15 state a claim upon which relief may be granted.
In the September 1, 2015 order, the Court
16 informed Plaintiff of the deficiencies in his complaint, and dismissed the complaint on the
17 ground that Plaintiff had failed to state a claim upon which relief could be granted. Because
18 Plaintiff’s first amended complaint fails to cure the deficiencies identified in the order dismissing
19 the original complaint, the Court recommends dismissal of this action with prejudice for failure
20 to state a claim upon which the Court could grant relief. See Lopez v. Smith, 203 F.3d 1122,
21 1127 (9th Cir. 2007)(recognizing longstanding rule that leave to amend should be granted even if
22 no request to amend was made unless the court determines that the pleading could not be cured
23 by the allegation of other facts); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)(pro se
24 litigant must be given leave to amend his or her complaint unless it is absolutely clear that the
25 deficiencies of the complaint could not be cured by amendment). See Ferdik v. Bonzelet, 963
26 F.2d 1258, 1261 (9th Cir. 1992)(dismissal with prejudice upheld where court had instructed
27 plaintiff regarding deficiencies in prior order dismissing claim with leave to amend).
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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure
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1 to state a claim upon which relief can be granted, and that this action count as a strike under 18
2 U.S.C. § 1915(g).
These findings and recommendations are submitted to the United States District Judge
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4 assigned to the case, pursuant to the provisions of 18 U.S.C. § 636(b)(1)(B). Within thirty days
5 after being served with these findings and recommendations, Plaintiff may file written objections
6 with the Court.
Such a document should be captioned “Objections to Magistrate Judge’s
7 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
8 specified time may result in waiver of rights on appeal. Wilkerson v. Wheeler, 77 F.3d 834 (9th
9 Cir. 2014)(citing Baxter v. Sullivan), 923 F.2d 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
12 Dated:
November 19, 2015
UNITED STATES MAGISTRATE JUDGE
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