Comminey v. Castelle, et al.

Filing 6

ORDER DISMISSING 1 COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Stanley A. Boone on 4/18/2017. First Amended Complaint due by 5/22/2017. (Attachments: # 1 Complaint Form). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WALTER COMMINEY,

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Plaintiff,
v.
SGT. B. CASTELLE, et al.,
Defendants.

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Case No.: 1:17-cv-00251-SAB (PC)
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO STATE
A COGNIZABLE CLAIM FOR RELIEF
[ECF No. 1]

Plaintiff Walter Comminey is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s complaint, filed February 21, 2017.

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I.

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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). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff tried to mail his legal transcripts and staff at California Substance Abuse and

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Treatment Facility assured him that the box would be mailed at a later date. Plaintiff discovered that

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the box was never mailed. He wrote a request to receiving and release inquiring as to the whereabouts

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of his legal property. Officer Sumpter advised Plaintiff that the box would be placed on a shelf in

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receiving and release.
Sergeant B. Castello conducted an interview and assured Plaintiff he would receive his box of

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property but it never happened. Officer Sumpter admitted to possession of Plaintiff’s property, and

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Plaintiff cannot file further appeals without his transcripts.
Plaintiff requests reimbursement in the amount of $100,000.00 for pain and suffering.

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III.

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DISCUSSION

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A.

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Plaintiff alleges a claim under the Due Process Clause of the Fourteenth Amendment, which

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protects prisoners from being deprived of property without due process of law, Wolff v. McDonnell,

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418 U.S. 539, 556 (1974).

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interests,” Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015) (citing Bd. of Regents of State

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Colls. v. Roth, 408 U.S. 564, 569-70 (1972)), and prisoners have a protected property interest in the

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funds in their prison trust accounts, Shinault, 782 F.3d at 1057 (citing Quick v. Jones, 754 F.2d 1521,

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1523 (9th Cir. 1985)). However, while an authorized, intentional deprivation of property is actionable

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under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984) (citing Logan v.

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Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982)); Quick, 754 F.2d at 1524, “[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 meaningful

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

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Legal Property

“Due process protections extend only to deprivations of protected

In this instance, Plaintiff alleges that prison officials’ negligent conduct lead to the loss of his

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legal transcripts and he seeks compensation as a result. Plaintiff has an adequate post-deprivation

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remedy under California law and therefore, he may not pursue a due process claim arising out of the

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unlawful confiscation of his personal property under section 1983. Barnett, 31 F.3d at 816-17 (citing

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Cal. Gov’t Code §§ 810-895). Accordingly, Plaintiff fails to state a cognizable claim for the loss of

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his legal transcripts.

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B.

Access to the Courts

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Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518

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U.S. 343, 346 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Phillips v. Hust, 588

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F.3d 652, 655 (9th Cir. 2009). However, to state a viable claim for relief, Plaintiff must show that he

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suffered an actual injury, which requires “actual prejudice to contemplated or existing litigation.”

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Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis, 518 U.S. at 348)

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(internal quotation marks omitted); Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis, 518
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U.S. at 351; Phillips, 588 F.3d at 655. The right is limited to the filing of direct criminal appeals,

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habeas petitions, and civil rights actions. Lewis, 518 U.S. at 354. However, Plaintiff must allege

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“actual injury” as a threshold requirement to any access to the courts claim. In addition, Plaintiff must

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allege the loss of a “non-frivolous” or “arguable” underlying claim. Harbury, 536 U.S. at 413-14. The

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nature and description of the underlying claim must be set forth in the pleading “as if it were being

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independently pursued.” Id. at 417.

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Here, Plaintiff alleges only that he cannot file further appeals without his transcripts, but

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provides no details of any “actual injury.” Accordingly, Plaintiff fails to set forth a cognizable access

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to the courts claim.

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IV.

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CONCLUSION AND ORDER

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For the reasons stated, Plaintiff’s complaint fails to state a claim upon which relief may be

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granted. Plaintiff is granted leave to file an amended complaint within thirty (30) days. Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by

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adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.

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Iqbal, 556 U.S. 662, 678. “The inquiry into causation must be individualized and focus on the duties

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and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a

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constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as

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true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level .

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. .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc.,

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114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be

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“complete in itself without reference to the prior or superseded pleading,” Local Rule 220. “All

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causes of action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.
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1981)); accord Forsyth, 114 F.3d at 1474.

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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff an amended civil rights complaint form;

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2.

Plaintiff’s complaint, filed February 21, 2017, is dismissed for failure to state a claim;

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3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and

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4.

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If Plaintiff fails to file an amended complaint in compliance with this order, this action
will be dismissed for failure to state a claim.

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IT IS SO ORDERED.

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Dated:

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April 18, 2017
UNITED STATES MAGISTRATE JUDGE

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