Spade v. Wischer et al

Filing 9

ORDER signed by Magistrate Judge John F. Moulds on 11/1/12 ORDERING that 7 Motion to Proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. This action is DISMISSED for failure to state a claim upon which relief may be granted. CASE CLOSED.(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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STEPHEN SPADE,

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Plaintiff,
vs.
MRS. DENISE J. WISCHER, et al.,
Defendants.

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No. 2:12-cv-1024 JFM P

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

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U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915. Plaintiff, the only party to appear in this action, has consented to proceed before a

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United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). See Consent filed May 23, 2012

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(Docket No. 8).

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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 this order, plaintiff will be assessed an initial partial filing fee

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in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will

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direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account
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and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust

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account. These payments will be forwarded by the appropriate agency to the Clerk of the Court

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each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28

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U.S.C. § 1915(b)(2).

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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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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355

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U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim a complaint must

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contain more than “a formulaic recitation of the elements of a cause of action;” it must contain

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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

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id. However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘“give the
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defendant fair notice of what the . . . claim is and the grounds upon which it rests.”’” Erickson

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v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (quoting Bell, 127 S.Ct. at 1964, in turn

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quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint under this

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standard, the court must accept as true the allegations of the complaint in question, Erickson, id.,

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and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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Plaintiff names two defendants in his complaint, Mrs. Denise Wischer, who is

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employed as a stenographer at a courthouse in the state of Wisconsin, and Mrs. Deidre Jones

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Elitabet, who is alleged to be Mrs. Wischer’s daughter. Plaintiff alleges that the two defendants

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have stolen five employment development checks belonging to plaintiff and totalling $2,064.86.

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Plaintiff’s complaint contains the following allegations. On or about December 31, 2011, he

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discovered that his worker’s compensation benefit checks were being cashed and deposited into

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Mrs. Wischer’s savings account. Plaintiff neither endorsed the checks to Mrs. Wischer nor gave

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her power of attorney to cash the checks. After depositing the checks, Mrs. Wischer sent the

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money to her daughter, who spent all of the money on items for herself. Plaintiff has contacted

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the police.

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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In addition, the United States Supreme Court has held that “an unauthorized

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intentional deprivation of property by a state employee does not constitute a violation of the

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

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meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517,

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533 (1984). Thus, where the state provides a meaningful postdeprivation remedy, only

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authorized, intentional deprivations constitute actionable violations of the Due Process Clause.

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An authorized deprivation is one carried out pursuant to established state procedures, regulations,

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or statutes. Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City

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of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). The California Legislature has provided a

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remedy for tort claims against public officials in the California Government Code, §§ 900, et seq.

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In the instant case, although plaintiff alleges generally that Mrs. Wischer “acted

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under color of state law,” see Complaint, filed April 18, 2012, at 8, the factual allegations of the

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complaint belie this general assertion. Moreover, even if either defendant was acting “under

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color of state law” in connection with the alleged events, the allegations of the complaint

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demonstrate that plaintiff’s claim is based on alleged unauthorized intentional deprivation of his

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property. For the reasons set forth supra, these allegations do not state a cognizable claim for

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violation of plaintiff’s federal constitutional rights. Accordingly, this court finds that plaintiff

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has failed to state a claim upon which relief may be granted. Moreover, it does not appear that

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the defects in the complaint could be cured by amendment. For that reason, this action must be

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dismissed. See 28 U.S.C. § 1915A.

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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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Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.
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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. This action is dismissed for failure to state a claim upon which relief may be

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granted. See 28 U.S.C. § 1915A.

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DATED: November 1, 2012.

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