Scott v. Sanches et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/13/11 RECOMMENDING that this action be dismissed for failing to state a claim upon which relief may be granted. Referred to Judge William B. Shubb; Objections to F&R due within 21 days.(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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HOWARD SCOTT,
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Plaintiff,
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No. 2: 10-cv-1664 WBS KJN P
vs.
C/O SANCHES, et al.,
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Defendants.
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FINDINGS & RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding without counsel, with a civil rights action
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pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s third amended complaint
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filed June 6, 2011. For the following reasons, the undersigned finds that the third amended
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complaint fails to state a colorable claim for relief and recommends that this action be dismissed.
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The only named defendant is Correctional Officer Sanches. The allegations in the
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third amended complaint are substantially similar to those made in the previous complaints.
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Plaintiff again alleges that defendant Sanches confiscated his television, hot pot, CDs and electric
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razor, but allegedly failed to prepare a property inventory sheet. When plaintiff sought return of
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the property, it could not be found. Plaintiff later learned that the property had been donated.
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The United States Supreme Court has held that “an unauthorized intentional
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deprivation of property by a state employee does not constitute a violation of the procedural
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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 v. Palmer, 468 U.S. 517, 533 (1984).
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Thus, where the state provides a meaningful postdeprivation remedy, only authorized, intentional
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deprivations constitute actionable violations of the Due Process Clause. An authorized
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deprivation is one carried out pursuant to established state procedures, regulations, or statutes.
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Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of
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Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987).
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In the instant case, plaintiff has not alleged any facts suggesting that the
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deprivation was authorized. Rather, plaintiff suggests that his property was lost due to
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mishandling by defendant Sanches. The California Legislature has provided a remedy for tort
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claims against public officials in the California Government Code, §§ 900, et seq. Because
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plaintiff has not attempted to seek redress in the state system, he cannot sue in federal court on
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the claim that the state deprived him of property without due process of the law. The
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undersigned concludes that this claim must, therefore, be dismissed as legally frivolous. See 28
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U.S.C. § 1915(e)(2).
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Attached to plaintiff’s third amended complaint is a copy of a first level appeal
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decision partially granting plaintiff’s first level appeal. (Dkt. 29 at 27.) According to this
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decision, plaintiff’s property was confiscated when he was placed in the Behavior Management
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Unit (“BMU”). (Id., at 31-33.) The property was confiscated because it was not allowed in the
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BMU. (Id.) Because plaintiff refused to sign a receipt for his property, the property was donated
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per institutional policy and procedure. (Id., at 33.) The facts, as summarized in the First Level
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Appeal decision, suggest that the deprivation of plaintiff’s property was authorized.
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An authorized, intentional deprivation of property is actionable under the Due
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Process Clause. Hudson v. Palmer, 468 U.S. 517, 532 n. 13 (1984) (citing Logan v. Zimmerman
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Brush Co., 455 U.S. 422 (1982)). “‘Ordinarily, due process of law requires [notice and] an
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opportunity for some kind of hearing prior to the deprivation of a ... property interest.’”
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Halverson v. Skagit County, 42 F.3d 1257, 1260 (9th Cir. 1995) (internal quotations and citations
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omitted). “However, when the action complained of is legislative in nature, due process is
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satisfied when the legislative body performs its responsibilities in the normal manner prescribed
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by law.” Id. “[G]overnmental decisions which affect large areas and are not directed at one or a
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few individuals do not give rise to the constitutional due process requirements of individual
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notice and hearing; general notice as provided is sufficient.” Id. at 1260-61.
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California Code Regs. Title 15, § 3191 provides that an inmate shall select one of
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the methods provided therein for disposing of personal property which is unauthorized pursuant
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to subsection (b) and sections 3006 and 3190. According to the First Level Appeal, plaintiff
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refused to sign a receipt for his confiscated property.
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Assuming the deprivation was authorized and intentional, plaintiff does not allege
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what due process he was entitled to that he did not receive. For this reason, the undersigned does
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not find that plaintiff has stated a colorable due process claim based on an intentional and
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authorized deprivation of his property.
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Because plaintiff has been unable to cure the pleading defects discussed above,
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despite being given multiple opportunities to do so, the undersigned recommends that this action
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be dismissed for failing to state a claim upon which relief may be granted.
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Accordingly IT IS HEREBY RECOMMENDED that this action be dismissed for
failing to state a claim upon which relief may be granted.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-
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one days after being served with these findings and recommendations, plaintiff may file written
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objections with the court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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DATED: June 13, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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