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)

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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

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