Burke v. Prezler-Riley et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/8/11 ORDERING that the Clerk is directed to assign a district judge to this action; RECOMMENDING that this action be dismissed. Referred to Judge Morrison C. England, Jr.; 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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GARY BURKE,
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Plaintiff,
No. 2: 11-cv-2550 KJN P
vs.
MS. PREZLER-RILEY, et al.,
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ORDER AND
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 amended complaint filed
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December 1, 2011. For the following reasons, the undersigned recommends that this action be
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dismissed.
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Named as defendants are Ms. Prezler-Riley, Steve Pryor, J. Singh and M. Taylor.
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As in the original complaint, plaintiff alleges that on January 21, 2011, he received a notice from
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the prison trust office stating that $1000 had been approved by defendant Taylor to be withdrawn
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from plaintiff’s trust account.1 However, plaintiff had not authorized $1000 to be withdrawn
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In the original complaint, plaintiff alleged that the withdrawal slip authorized $1000 to
be sent from his trust account to Elizabeth Roberts. (Dkt. 1 at 4.) Plaintiff alleged that he did not
know Elizabeth Roberts. (Id.)
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from his trust account. Defendant Taylor later told plaintiff that he had never approved the
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withdrawal. Plaintiff alleges that his own signature was forged on the withdrawal slip.
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Plaintiff alleges that defendant Prezler-Riley approved of the withdrawal in
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violation of a California Department of Corrections and Rehabilitation (“CDCR”) policy.
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Pursuant to this policy, defendant Prezler-Riley was required to verify large withdrawals from
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inmate trust accounts before approving them. Plaintiff claims that defendant Prezler-Riley failed
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to verify the withdrawal in violation of this policy.
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Plaintiff alleges that defendants Pryor and Singh failed to investigate the
withdrawal after plaintiff complained about it. Plaintiff suggests that defendants were especially
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obligated to conduct an investigation after defendant Prezler-Riley admitted that she failed to
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follow CDCR policies.
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In Parratt v. Taylor, 451 U.S. 527, 541 (1981), the Supreme Court held that due
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process is not violated when a state employee negligently deprives an individual of property, as
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long as the state makes available a meaningful post-deprivation remedy. The rationale
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underlying Parratt is that pre-deprivation procedures are impractical when the deprivation of
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property occurs through negligent conduct of a state employee because a state cannot know when
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such deprivations will occur. Hudson v. Palmer, 468 U.S. 517 (1984). “Where a government
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official’s act causing injury to life, liberty, or property is merely negligent, ‘no procedure for
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compensation is constitutionally required.’” Daniels v. Williams, 474 U.S. 327, 333 (1986)
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(emphasis added) (quoting Parratt, 451 U.S. at 548).
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The logic of Parratt has been extended to intentional unauthorized deprivations of
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property by state actors because a state also cannot know when such deprivations will occur.
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Hudson, 468 U.S. at 533 (1984). As with negligent deprivations, where a state makes available a
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meaningful post-deprivation remedy, such as a common-law tort suit against a prison employee
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for intentional unauthorized deprivations, a federal due process claim is precluded. Hudson, 468
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U.S. at 534–35; King v. Massarweh, 782 F.2d 825, 826 (9th Cir. 1986).
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In the instant case, plaintiff has plead no facts demonstrating that the deprivation
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of his property was authorized, i.e., pursuant to an official policy. Instead, plaintiff alleges facts
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demonstrating that the deprivation was unauthorized in that it was caused by defendant Prezler-
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Riley’s failure to follow the CDCR policy requiring her to verify large withdrawals from inmate
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trust accounts before approving them. 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 failed to allege an authorized deprivation and because the state has provided
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meaningful post-deprivation remedies, the undersigned finds that plaintiff has not stated a
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colorable due process claim based on the withdrawal of $1000 from his trust account.
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Plaintiff has already been given one opportunity to amend his complaint. Because
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it does not appear that plaintiff can cure the pleading defects, the undersigned recommends that
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this action be dismissed.
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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to
assign a district judge to this action; and
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IT IS HEREBY RECOMMENDED that this action be dismissed.
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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: December 8, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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bu2550.56
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