Brazier v. California Department of Correction and Rehabilitation et al

Filing 9

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/18/12 ORDERING that Plaintiffs request for leave to proceed in forma pauperis is GRANTED. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiffs June 27, 2012 motion for preliminary injunction 8 is DENIED. Plaintiff's complaint is DISMISSED with 30 days to file an amended complaint.(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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ANTHONY BRAZIER,

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Plaintiff,

No. 2:12-cv-0883 CKD P

Defendants.

ORDER

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vs.
CDCR, et al.,

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Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42

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U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma

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pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1). Plaintiff has consented to this court’s jurisdiction. (Dkt. No. 5.)

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Plaintiff has submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28

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U.S.C. §§ 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to

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collect the initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the

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Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the

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preceding month’s income credited to plaintiff’s prison trust account. These payments will be
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forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s

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account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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I. Screening

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more...than...a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127

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S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.” Id.

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In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff,

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and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct.

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1843 (1969).

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Here, plaintiff claims that money was taken from his inmate trust account at Deuel

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Vocational Institution (DVI) without his consent or signature and without due process.

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Specifically, he alleges that he received two tax refund checks in March and April 2011, totalling

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$1267.00. In May 2011, his trust account was frozen, and the following month, $1267.00 was

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withdrawn from his account. Because by this time plaintiff did not have the money to cover the

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entire amount, a hold was placed on his account of $839.15, which he now owes. (Dkt. No. 1 at

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4.)

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Plaintiff attaches a June 2011 letter from defendant E. Rodriguez, a Senior
Account Clerk, stating that the IRS had informed the DVI trust office that

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a tax return check was issued to you in error. The IRS has ordered
. . . DVI trust to return these funds. I have processed a bank buy
back from your account in order to return the funds. This process
takes the money out of your account and issues a check payable to
the IRS. . . . Your account is no longer frozen but may have a
negative balance due to money spent from the funds you received
in error.

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(Id. at 9.) Plaintiff appealed this decision. In a Third Level Appeal Decision issued in December

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2011, the reviewer

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acknowledges that the appellant was issued an IRS tax refund in
error; therefore, a buy back was issued from the appellant’s trust
account to return the funds to the IRS. . . . The fact remains that the
appellant received the funds and then spent them very quickly. . .
The TLR notes that citizens are not entitled to keep funds when a
government entity makes a clerical error and the appellant is not
immune from this requirement.
(Id. at 7.) Plaintiff’s administrative appeals having been denied, he seeks “a letter of reprimand
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to be placed in the permanent file of whoever is responsible” and “to have all the money that was

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taken from my account in the last 8 months replaced, as well as $1,000,000.00 in damages.” (Id.

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at 3.)

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While an authorized, intentional deprivation of property is actionable under the

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Due Process Clause, neither a negligent nor intentional unauthorized deprivation of property by a

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prison official is actionable if a meaningful post-deprivation remedy is available for the loss.

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Hudson v. Palmer, 468 U.S. 517, 533 (1984); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir.

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1984). Whether the cause of the property loss or damage was intentional and unauthorized or

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negligent, Due Process is satisfied if there is a meaningful post-deprivation remedy available to

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plaintiff. Hudson, 468 U.S. at 533.
Plaintiff names five defendants: CDCR; Warden S.M. Salinas; Chief Deputy

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Warden R. J. Rackey; Business Service Manager E. Miramentes; and Senior Account Clerk E.

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Rodriguez. For the reasons discussed below, he fails to state a cognizable due process claim

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against any defendant.

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As to defendant CDCR, plaintiff’s claims are barred by the doctrine of sovereign

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immunity. The Eleventh Amendment serves as a jurisdictional bar to suits brought by private

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parties against a state or state agency unless the state or the agency consents to such suit. See

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Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978)( per curiam);

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Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). In the instant case, the State of

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California has not consented to suit. Accordingly, plaintiff’s claim against CDCR is frivolous

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and must be dismissed.

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As to defendant Warden Salinas, plaintiff has failed to allege his direct

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involvement in the incidents described. Supervisory personnel are generally not liable under

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§ 1983 for the actions of their employees under a theory of respondeat superior and, therefore,

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when a named defendant holds a supervisorial position, the causal link between him and the

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claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858,
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862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442

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U.S. 941 (1979). Thus plaintiff’s claims against these defendants must also be dismissed.

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As to the three remaining defendants, plaintiff claims that Miramentes placed a

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hold on his trust account in May 2011. He claims that his appeals seeking reimbursement were

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denied at the first level by Rodriguez and at the second level by Rackey. (Dkt. No. 1 at 4; see id.

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at 9 (Rodriguez memorandum).) However, attachments to the complaint make clear that these

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CDCR employees were following the directive of the IRS. In a May 11, 2011 letter to DVI staff,

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a Supervisory Tax Examiner with the IRS stated that refund checks for several inmates had been

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issued in error, and asked correctional staff to “return these checks to the Tax Examiner.” (Id. at

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10.) Plaintiff also attaches a November 17, 2011 letter from the IRS Service Center in Kansas

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City, Missouri stating: “Our records do not show any refund checks being returned to us.” (Id. at

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11.) Thus it is unclear when or if the funds from plaintiff’s trust account were returned to the

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IRS.

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However, the court finds that, in light of the circumstances set forth in the

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complaint and attached documents, the alleged actions of Miramentes, Rackey, and Rodriguez do

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not rise to a violation of plaintiff’s federal due process rights. Plaintiff’s complaint will be

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dismissed and he will be granted leave to file an amended complaint within 30 days of service of

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this order.

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II. Motion for Preliminary Injunction

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On June 27, 2012, plaintiff filed a motion for preliminary injunction. He seeks a

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court order setting aside all holds on his prison trust account “until a decision is made by the

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courts.” (Dkt. No. 8.)

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The legal principles applicable to a request for injunctive relief are well

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established. To prevail, the moving party must show either a likelihood of success on the merits

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and the possibility of irreparable injury, or that serious questions are raised and the balance of

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hardships tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122
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F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374,

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1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal

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point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under

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any formulation of the test, plaintiff must demonstrate that there exists a significant threat of

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irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the

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court need not reach the issue of likelihood of success on the merits. Id.

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Here, plaintiff has not shown a likelihood of success on the merits because, as

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discussed above, he has failed to state a cognizable claim against any defendant. Therefore his

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motion for injunctive relief will be denied.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms

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how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless

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there is some affirmative link or connection between a defendant’s actions and the claimed

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deprivation. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976); May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore,

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vague and conclusory allegations of official participation in civil rights violations are not

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sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in

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order to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

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All fees shall be collected and paid in accordance with this court’s order to the Director of the

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California Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff’s June 27, 2012 motion for preliminary injunction (Dkt. No. 8) is
denied.

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4. The complaint is dismissed for the reasons discussed above, with leave to file

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an amended complaint within thirty days from the date of service of this order. Failure to file an

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amended complaint will result in a recommendation that the action be dismissed.
Dated: July 18, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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