Mathis v. Carr et al

Filing 11

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 8/28/2013 GRANTING plaintiff's 2 motion to proceed IFP; plaintiff to pay the $350.00 filing fee with an initial partial filing fee in accordance with the concurrent CDCR order; and RECOMMENDING that this action be dismissed for failure to state a cognizable claim. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENNIE MATHIS,

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No. 2:12-cv-02325 KJM DAD P

Plaintiff,

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v.

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B. CARR, et al.,

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ORDER AND
FINDINGS AND RECOMMENDATIONS
Defendants.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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I. The Court's October 11, 2012 Order
Plaintiff was previously ordered to file a certified copy of his trust account statement in

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support of his application for leave to proceed in forma pauperis. (ECF No. 8.) Therein plaintiff

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was also advised, however, that should he elect to proceed with this action the undersigned would

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likely issue findings and recommendations recommending that this action be dismissed for failure

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to state a cognizable claim for the reasons explained. (Id. at 2, n.2.) Plaintiff was advised that

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rather than filing his prison trust account statement in support of his in forma pauperis

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application, he could request voluntary dismissal of this action. Plaintiff has nonetheless elected

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to proceed with this civil rights action and, on November 8, 2012, filed with the court a certified

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copy of his trust account statement.

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II. In Forma Pauperis Application

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

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1915(a) and which is supported by a certified copy of his inmate trust account statement.

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Accordingly, the request to proceed in forma pauperis will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §

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1915(b)(2).

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III. Screening Requirement

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 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 (9th

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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 plain

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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, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976). The court must also construe the pleading in the light most favorable to the plaintiff and

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resolve all doubts in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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IV. Failure to State a Cognizable Claim

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In his complaint, plaintiff alleges that he has been deprived of his personal property and

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seeks declaratory judgment, monetary damages and an injunction. Plaintiff explains in his

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complaint that when he was being transferred to a different institution of confinement, defendant

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correctional sergeant Carr disregarded prison rules and regulations concerning the transfer of

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personal property which resulted in the loss of plaintiff’s personal property. According to

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plaintiff, defendants Fisher, Brazelton and Lozano were involved in denying plaintiff's inmate

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appeal in which he complained of his property loss and that too deprived plaintiff of his property

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rights.

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The United States Supreme Court has held that “an unauthorized intentional deprivation

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of property by a state employee does not constitute a violation of the procedural requirements of

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the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy

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for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, where the state

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provides a meaningful post-deprivation remedy, only authorized, intentional deprivations

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constitute actionable violations of the Due Process Clause. An authorized deprivation is one

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carried out pursuant to established state procedures, regulations, or statutes. Piatt v. McDougall,

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773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142,

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1149 (9th Cir. 1987).

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Here, plaintiff contends that regulations exist concerning the transfer of prisoners’

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personal property and that defendant Carr “deliberate[ly] disregard[ed]” those regulations which

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resulted in plaintiff’s loss of his property. (ECF No. 1 at 3.) Thus, plaintiff is alleging an

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unauthorized intentional deprivation of his property. 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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Therefore, plaintiff must seek redress in the state system and he cannot sue in federal court on a

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claim that the defendant Carr deprived him of property without due process of the law. Hudson,

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468 U.S. at 533. Plaintiff’s claim against defendants Fisher, Brazelton and Lozano must also be

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dismissed for the same reason and, in addition, because plaintiff has failed to allege that those

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named defendants were involved in the loss of his property beyond their involvement in the

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denial of his inmate appeal.

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V. Conclusion

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

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1. Plaintiff’s September 10, 2012 application 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. Plaintiff

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is assessed an initial partial filing fee. All fees shall be collected and paid in accordance with this

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court’s order to the Director of the California Department of Corrections and Rehabilitation filed

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concurrently herewith.

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Also, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to state
a cognizable claim. See 28 U.S.C. § 1915(e)(2).

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: August 28, 2013

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DAD:4
math2325.fsc

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