Guillermo Trujillo Cruz v. Gomez et al

Filing 21

ORDER DISMISSING 20 Second Amended Complaint (Strike), with Prejudice, for Failure to State a Claim; ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. 1915(g); ORDER for Clerk to CLOSE CASE signed by Magistrate Judge Erica P. Grosjean on 2/2/2017. CASE CLOSED.(Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 14 15 ORDER DISMISSING SECOND AMENDED COMPLAINT, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM Plaintiff, 12 13 Case No. 1:15-cv-00859-EPG (PC) GUILLERMO TRUJILLO CRUZ, v. (ECF NO. 20) GOMEZ and SANCHEZ, ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(g) Defendants. 16 ORDER FOR CLERK TO CLOSE CASE 17 18 Guillermo Trujillo Cruz (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Now before the Court for 20 screening is Plaintiff’s Second Amended Complaint, which was filed on January 23, 2017. (ECF 21 No. 20). Plaintiff has consented to Magistrate Judge jurisdiction in this action pursuant to 28 22 U.S.C. § 636(c) (ECF No. 4), and no other parties have made an appearance. Therefore, 23 pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the 24 undersigned shall conduct any and all proceedings in the case until such time as reassignment to 25 a District Judge is required. Local Rule Appendix A(k)(3). 26 The Court has screened two prior complaints and dismissed them with leave to amend. 27 The Court has reviewed and screened Plaintiff’s second amended complaint and dismisses it 28 with prejudice and without leave to amend. As discussed below, Plaintiff’s main allegations 1 1 concern the destruction of his personal property during a cell search. California law provides a 2 remedy through the Government Claims Act, and to be able to file a tort claim in court Plaintiff 3 must have complied with the Act. Plaintiff has not complied with the Act, and his Second 4 Amended Complaint does not state a claim for violation of the Constitution. 5 I. SCREENING REQUIREMENT 6 The Court is required to screen complaints brought by prisoners seeking relief against a 7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 8 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 9 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 10 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 11 ' 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been 12 paid, the court shall dismiss the case at any time if the court determines that the action or appeal 13 fails to state a claim upon which relief may be granted.” 28 U.S.C. ' 1915(e)(2)(B)(ii). 14 A complaint is required to contain “a short and plain statement of the claim showing that 15 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 16 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 19 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 20 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 21 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are 22 not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 23 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a plaintiff’s 24 legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 25 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 26 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 27 pro se complaints should continue to be liberally construed after Iqbal). 28 /// 2 1 II. SUMMARY OF SECOND AMENDED COMPLAINT 2 Plaintiff claims that his rights were violated because Defendants and correctional officers 3 Gomez and Sanchez “fail[ed] to act with reasonable care,” regarding his personal property 4 during a cell search. Specifically, on October 7, 2014, Defendants Gomez and Sanchez 5 conducted a cell search for extra state clothing. During the cell search, Plaintiff was placed in 6 the shower area. He could hear a lot of racket from items being thrown on the floor and in the 7 locker. Plaintiff told Defendants Gomez and Sanchez to be more careful with his personal 8 property. 9 After the cell search Defendants Gomez and Sanchez told Plaintiff “That’s why we broke 10 your television.” Plaintiff noticed that the T.V. was broken from the base and screws were 11 unscrewed next to the speakers. Plaintiff alleges that Defendants Gomez and Sanchez 12 intentionally and purposely damaged the television during the search by ignoring his verbal 13 request to be careful. 14 On September 3, 2014, Plaintiff had filed a 602 grievance against Defendant Sanchez 15 based on the fact that Plaintiff did not receive his laundry back. Plaintiff believes that 16 Defendants Gomez and Sanchez retaliated against Plaintiff for filing the 602 grievance by 17 conducting the October 7 cell search and destroying his property. 18 Plaintiff includes correspondence with the appellate office regarding his grievance, which 19 includes Plaintiff’s assertion that “staff inappropriately searched his cell and damaged his 20 property.” Plaintiff’s 602 grievance asserted that “During a laundry cell search conducted by 21 Mrs. Sanchez and c/o Mr. Gomez, I found my T.V. broken and screws that where [sic] at the 22 bottom of the plastic frame next.” He asked for “reimburse[ment] on broken cleartunes 13” LED 23 TV. value of $194.45.” He further asserted that “both officers Mr. Gomez and Mrs. Sanchez 24 conducted the cell search without reasonable care to personal property.” 25 III. PRIOR SCREENING ORDERS 26 The Court has twice screened Plaintiff’s complaint in this case, dismissing the claims 27 with leave to amend. 28 On October 4, 2016, the Court issued an order dismissing Plaintiff’s original complaint 3 1 with leave to amend. (ECF No. 11). Regarding the retaliation cause of action, that order found 2 that “Plaintiff’s allegations are insufficient to state a retaliation claim against Defendant Gomez. 3 The Complaint does not clearly allege facts demonstrating that adverse action was taken against 4 Plaintiff because he engaged in protected conduct, such as filing a grievance, and that such 5 adverse action chilled Plaintiff’s exercise of his First Amendment rights. In other words, there 6 are not sufficient facts to indicate that Defendant Gomez confiscated or damaged Plaintiff’s 7 property or in retaliation for Plaintiff filing a grievance.” (Id. at p. 4). Regarding the Due 8 Process claim, that order explained: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Plaintiff’s allegations are insufficient to state a due process claim against Defendant Gomez or C/O Sanchez. The Complaint does not clearly allege facts demonstrating that Plaintiff was intentionally deprived of his personal property pursuant to any authorized procedure or process. To the contrary, Plaintiff’s allegations indicate that Defendant Gomez and C/O Sanchez damaged Plaintiff’s television while searching Plaintiff’s cell for extra state clothing and that Defendant Gomez wrongfully and arbitrarily confiscated and damaged Plaintiff’s personal property after Plaintiff was transferred to the administrative segregation unit. The unauthorized deprivation of property, be it negligent or intentional, does not give rise to a claim for relief under the Due Process Clause. See Hudson, 468 U.S. at 533. Rather, Plaintiff’s remedy, if any, would be found under California law. California’s Government Claims Act requires that a tort claim against a public entity or its employees be presented to the California Victim Compensation and Government Claims Board, formerly known as the State Board of Control, no more than six months after the cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950–950.2 (West 2006). Presentation of a written claim, and action on or rejection of the claim are conditions precedent to suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245 (Cal. 2004); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against a public employee, a plaintiff must allege compliance with the Government Claims Act. Bodde, 32 Cal.4th at 1245; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). Here, the Complaint fails to allege facts demonstrating compliance with California’s Government Claims Act, and therefore fails to state a tort claim under state law.” 25 (Id. at pgs. 5-6) (footnotes omitted). 26 The Court also screened Plaintiff’s First Amended Complaint. (ECF No. 13). That order 27 reiterated the law and conclusions regarding the retaliation and due process causes of action, and 28 also provided the applicable legal standards for and evaluated additional claims presented by 4 1 Plaintiff’s First Amended Complaint. Regarding an access to the courts claim, the Court 2 explained that “Plaintiff’s allegations are insufficient to state a First Amendment claim regarding 3 access to the courts. Plaintiff has not shown that any prison officials’ actions, or failure to act, 4 during the prison grievance process caused him actual prejudice with respect to pending 5 litigation or a claim that he was unable to bring. The FAC is devoid of any facts suggesting that 6 Plaintiff suffered an injury impacting Plaintiff’s litigation, such as the inability to meet a filing 7 deadline or to present a claim. Therefore, Plaintiff fails to state a claim for denial of access to 8 the courts.” (Id. at p. 7). Moreover, regarding Plaintiff’s Fourteenth Amendment claim, the 9 Court stated “To the extent Plaintiff is attempting to base a due process claim on prison officials’ 10 failure to process his grievance, the FAC fails to state a cognizable claim. As Plaintiff has neither 11 a liberty interest, nor a substantive right in inmate appeals, Plaintiff fails to state a cognizable due 12 process claim for the processing and/or reviewing of his 602 grievance.” (Id. at p. 8). EVALUATION OF PLAINTIFF’S SECOND AMENDED COMPLAINT 13 IV. 14 The Court finds that Plaintiff’s Second Amended complaint should be dismissed for the 15 same reasons as laid out in the prior screening orders. 16 Plaintiff’s allegations stem from correctional officers damaging Plaintiff’s property 17 during a cell search. Whether negligent or intentional, the destruction of personal property 18 constitutes a tort that must be pursued through the California Government Claims Act. The facts 19 Plaintiff has alleged do not state a claim for violation of the United States Constitution. 20 Plaintiff’s complaint attempts to state a violation of the Constitution by asserting various 21 constitutional provisions, but the Court finds that the allegations fail to state such a claim for the 22 reasons described above. Plaintiff’s Second Amended Complaint emphasizes the proximity 23 between a 602 grievance he filed against one of the defendants and the cell search by the two 24 defendants to set forth a retaliation claim under the First Amendment. However, the only 25 evidence is the proximity in time, which is a little over a month between the filing the 602 26 grievance and the cell search. There are no other facts indicating that the search was done in 27 retaliation, such as something that the officers said. It also appears that these correctional 28 officers dealt with laundry as part of their job activities. Therefore the fact that there was a 5 1 grievance regarding Plaintiff’s laundry and then a search of Plaintiff’s cell to search for extra 2 state clothing does not itself give rise to an inference that the search was due to retaliation. 3 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 4 of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678 5 (citing Twombly, 550 at 555). To survive screening, Plaintiff's claims must be facially plausible, 6 which requires sufficient factual detail to allow the Court to reasonably infer that each named 7 defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret 8 Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted 9 unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant's liability” 10 falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 11 V. CONCLUSION AND ORDER 12 The Court finds that Plaintiff Second Amended Complaint (ECF No. 20) fails to state a 13 cognizable claim against any defendant and should be dismissed. 14 The Court does not believe Plaintiff is entitled to additional leave to amend his 15 complaint. The Court has twice screened Plaintiff’s earlier complaints and found that they did 16 not state a claim. The Court provided legal guidance to assist Plaintiff in stating a claim. 17 Plaintiff has now filed three complaints without stating a cognizable claim. 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 6 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e), this action is 3 DISMISSED, with prejudice, based on Plaintiff=s failure to state a claim 4 upon which relief may be granted under § 1983; 5 This dismissal is subject to the Athree-strikes@ provision set forth in 28 2. U.S.C. ' 1915(g). Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015); 6 and, 7 8 9 3. The Clerk is DIRECTED to close this case. IT IS SO ORDERED. 10 11 Dated: February 2, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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