Mosley v. Broyles

Filing 14

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/23/13 ORDERING that the First Amended Complaint 12 be dismissed with prejudice, and this action is closed. 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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DERRICK MOSLEY,
Plaintiff,

ORDER

vs.

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No. 2:12-cv-2681 CKD P

Defendant.

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BROYLES,

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/

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Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, who seeks

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relief pursuant to 42 U.S.C. § 1983. Plaintiff has consented to this court’s jurisdiction. (Dkt. No.

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6.) Before the court is plaintiff’s First Amended Complaint (“FAC”) filed March 13, 2013.

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(Dkt. No. 12.)
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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Here, the court finds that the FAC fails to cure the defects of the original

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complaint as set forth in the screening order issued February 14, 2013. (Dkt. No. 9.) Plaintiff

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alleges that defendant Broyles “made the sole decision to confiscate [plaintiff’s] property” in

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violation of established state procedures. (Dkt. No. 12.) However, an unauthorized intentional

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deprivation of property by a state employee does not constitute a violation of federal due process

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if the state provides a meaningful post-deprivation remedy for the loss. See Hudson v. Palmer,

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468 U.S. 517, 533 (1984). The California Legislature has provided a remedy for tort claims

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against public officials in the California Government Code, §§ 900, et seq..

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Plaintiff asserts that he tried to appeal the confiscation of his property through the

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prison grievance procedure, but did not receive a response. Inmates do not have a Constitutional

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right to a specific prison grievance procedure. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.

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2003). Thus plaintiff fails to state a section 1983 claim on this basis.
Finally, plaintiff’s allegations that defendant violated state laws or policies are not

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cognizable under section 1983.

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Because plaintiff has failed to a state a claim under section 1983, and the court

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concludes that another round of amendment would be futile, the court will dismiss this action

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with prejudice. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998) (court

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need not grant leave to amend if amendment would be futile).

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In accordance with the above, IT IS HEREBY ORDERED THAT the First

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Amended Complaint (Dkt. No. 12) be dismissed with prejudice, and this action is closed.

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Dated: April 23, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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mosl2681.FAC

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