Comminey v. Castelle, et al.

Filing 9

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action for Failure to State a Cognizable Claim for Relief 7 , signed by Magistrate Judge Stanley A. Boone on 5/10/17: 30-Day Deadline. (Hellings, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

WALTER COMMINEY,

12
13
14
15

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

16
17

)
)
)
)
)
)
)
)
)
)

Case No.: 1:17-cv-00251-LJO-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A COGNIZABLE
CLAIM FOR RELIEF
[ECF No. 7]

Plaintiff Walter Comminey is appearing pro se and in forma pauperis in this civil rights action

18

pursuant to 42 U.S.C. § 1983. Plaintiff has not consented or declined to United States Magistrate

19

Judge jurisdiction; therefore, this action was referred to the undersigned pursuant to 28 U.S.C. §

20

636(b)(1)(B) and Local Rule 302.

21

Currently before the Court is Plaintiff’s first amended complaint, filed May 5, 2017.

22

I.

23

SCREENING REQUIREMENT

24

The Court is required to screen complaints brought by prisoners seeking relief against a

25

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

26

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

27

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

28

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
1

A complaint must contain “a short and plain statement of the claim showing that the pleader is

1
2

entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

3

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

II.

18

COMPLAINT ALLEGATIONS
Correctional officer Hopkins placed Plaintiff’s box of court transcripts in building six dining

19
20

room “property closet,” and assured Plaintiff that it would be taken to receiving and release (R&R) to

21

be mailed out on Plaintiff’s behalf. After two weeks, the property was still in building six “property

22

closet,” and it was subsequently sent to R&R by officer Sumpter. Plaintiff filed a request for

23

interview regarding the status of his property. Plaintiff was informed that the property was on

24

Sumpter’s shelf and it could not be mailed out, so Plaintiff requested it back. Plaintiff was assured

25

that it would be sent soon as the officer would pick it up. Plaintiff never received the property.

26

Plaintiff continued to file inmate grievances regarding the return of his property. Plaintiff contends he

27

is entitled to compensation for the negligent loss of his property.

28

///
2

1

III.

2

DISCUSSION

3

A.

4

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

5

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

6

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

7

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

8

Colls. v. Roth, 408 U.S. 564, 569-70 (1972). However, while an authorized, intentional deprivation of

9

property is actionable under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13

10

(1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982)); Quick, 754 F.2d at

11

1524, “[a]n unauthorized intentional deprivation of property by a state employee does not constitute a

12

violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a

13

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

14

Due Process-Property Deprivation

“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

15

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

16

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

17

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

18

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

19

his legal property.

20

Furthermore, there are no constitutional requirements regarding how a grievance system is

21

operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner’s claimed

22

loss of a liberty interest in the processing of his appeals does not violate due process because prisoners

23

lack a separate constitutional entitlement to a specific prison grievance system). Thus, Plaintiff may

24

not impose liability on a Defendant simply because he played a role in processing Plaintiff’s appeals

25

or because the appeals process was otherwise rendered unfair. See Buckley v. Barlow, 997 F.2d 494,

26

495 (8th Cir. 1993) (an administrative “grievance procedure is a procedural right only, it does not

27

confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty

28
3

1

interest requiring the procedural protections envisioned by the fourteenth amendment.” (internal

2

quotations omitted)).

3

B.

Access to the Courts

4

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

5

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

6

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

7

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

8

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

9

(internal quotation marks omitted); Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis, 518

10

U.S. at 351; Phillips, 588 F.3d at 655. The right is limited to the filing of direct criminal appeals,

11

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

12

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

13

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

14

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

15

independently pursued.” Id. at 417.

16

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

17

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

18

to the courts claim.

19

IV.

20

RECOMMENDATIONS

21

Plaintiff was previously notified of the applicable legal standards and the deficiencies in his

22

pleading, and despite guidance from the Court, Plaintiff’s first amended complaint is largely identical

23

to the original complaint.

24

complaint, the Court is persuaded that Plaintiff is unable to allege any additional facts that would

25

support a claim for a due process violation or access to the court, and further amendment would be

26

futile. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may not deny

27

leave to amend when amendment would be futile.”) Based on the nature of the deficiencies at issue,

28

the Court finds that further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130

Based upon the allegations in Plaintiff’s original and first amended

4

1

(9th. Cir. 2000); Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987).

2

Based on the foregoing, it is HEREBY RECOMMENDED that:

3

1.

4

The instant action be dismissed, without further leave to amend, for failure to state a

cognizable claim for relief; and

5

2.

The Clerk of Court be directed to terminate this action.

6

These Findings and Recommendations will be submitted to the United States District Judge

7

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after

8

being served with these Findings and Recommendations, Plaintiff may file written objections with the

9

Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

10

Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

11

result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

12

(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

13
14

IT IS SO ORDERED.

15

Dated:

16

May 10, 2017
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
5