Womack v. Donahoo et al

Filing 14

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/13/13 RECOMMENDING that plaintiffs amended complaint be dismissed for failure to state a claim and that the Clerk be directed to close this case. Referred to Judge William B. Shubb; Objections to F&R due within 14 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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RODNEY WOMACK,

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Plaintiff,
vs.

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No. 2:12-cv-3110-WBS-EFB P
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION WITHOUT LEAVE
TO AMEND FOR FAILURE TO STATE A
CLAIM

B. DONAHOO, et al.,

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Defendants.
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. After a dismissal pursuant to 28 U.S.C. § 1915A, plaintiff has filed an amended

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complaint.

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I.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short

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and 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 Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 129

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S. Ct. 1937, 1949 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal,

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129 S. Ct. at 1949.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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II.

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Background
According to the allegations in the original complaint (ECF No. 1), a correctional officer

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destroyed some of plaintiff’s personal property. In response, plaintiff filed administrative

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appeals with defendant Donahoo, the appeals coordinator. Donahoo allegedly cancelled the

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appeal as duplicative and provided plaintiff with erroneous information. Defendant Murray also

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allegedly failed to process plaintiff’s CDCR 22 request forms. Plaintiff claimed that his
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complaints needed to be properly processed in order for him to file a small claims action based

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on the alleged destruction of his property. In addition, plaintiff named Warden Tim Virga as a

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defendant, but failed to include any allegations against him.

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The court reviewed plaintiff’s complaint pursuant to § 1915A and dismissed it with leave

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to amend because it did not state a cognizable claim. See ECF No. 8. In doing so, the court

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specifically informed plaintiff of the following requirements to keep in mind when drafting any

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amended complaint:

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two
essential elements: (1) that a right secured by the Constitution or laws of the
United States was violated, and (2) that the alleged violation was committed by a
person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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An individual defendant is not liable on a civil rights claim unless the
facts establish the defendant’s personal involvement in the constitutional
deprivation or a causal connection between the defendant’s wrongful conduct and
the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646
(9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). Plaintiff
may not sue any official on the theory that the official is liable for the
unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S. Ct.
1937, 1948 (2009). Rather, a plaintiff must plead that each defendant, through his
own individual actions, has violated the Constitution. Id. It is plaintiff’s
responsibility to allege facts to state a plausible claim for relief. Iqbal, 129 S. Ct.
at 1949; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

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Prisoners have a constitutional right of access to the courts. Bounds v.
Smith, 430 U.S. 817, 828 (1977). Prisoners also have a right “to litigate claims
challenging their sentences or the conditions of their confinement to conclusion
without active interference by prison officials.” Silva v. Di Vittorio, 658 F.3d
1090, 1103 (9th Cir. 2011). An inmate alleging a violation of this right must
show that he suffered an actual injury. Lewis v. Casey, 518 U.S. 343, 349-51
(1996). That is, plaintiff must allege that the deprivation actually injured his
litigation efforts, in that the defendant hindered his efforts to bring, or caused him
to lose, an actionable claim challenging his criminal sentence or conditions of
confinement. See id. at 351; Christopher v. Harbury, 536 U.S. 403, 412-15
(2002).

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There are no constitutional requirements regarding how a grievance
system is operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)
(holding that prisoner’s claimed loss of a liberty interest in the processing of his
appeals does not violate due process because prisoners lack a separate
constitutional entitlement to a specific prison grievance system). Thus, plaintiff
may not impose liability on a defendant simply he or she played a role in
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processing plaintiff’s inmate appeals. See Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993) (an administrative “grievance procedure is a procedural right only,
it does not confer any substantive right upon the inmates. Hence, it does not give
rise to a protected liberty interest requiring the procedural protections envisioned
by the fourteenth amendment. . . . Thus, defendants’ failure to process any of
Buckley’s grievances, without more, is not actionable under section 1983.”
(internal quotations omitted)).

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The Due Process Clause protects prisoners from being deprived of
property without due process of law, Wolff v. McDonnell, 418 U.S. 539, 556
(1974), and prisoners have a protected interest in their personal property, Hansen
v. May, 502 F.2d 728, 730 (9th Cir. 1974). The United States Supreme Court has
held, however, that “an unauthorized intentional deprivation of property by a state
employee does not constitute a violation of the procedural requirements of the
Due Process Clause of the Fourteenth Amendment if a meaningful
postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S.
517, 533 (1984). California provides an adequate postdeprivation remedy.
Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (per curiam) (“[A]
negligent or intentional deprivation of a prisoner’s property fails to state a claim
under section 1983 if the state has an adequate post deprivation remedy.”).

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ECF No. 8 at 3-5.

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Now before the court is plaintiff’s amended complaint. ECF No. 13.
III.

The Amended Complaint
The allegations in the amended complaint do not materially differ from those in the

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original complaint. Once again, plaintiff fails to identify his intended claims for relief.

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However, the allegations indicate that plaintiff seeks redress for: (1) defendant McElroy’s

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alleged destruction of his personal property; (2) defendant Murry’s alleged failure to process his

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paperwork, thereby interfering with his ability to utilize the administrative appeals process, (3)

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defendant Donahoo’s alleged failure to process his administrative appeal; and (4) defendant

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Warden Virga’s alleged denial of his administrative appeal, and purported knowledge of the

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conduct of his subordinates.

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The allegations in the amended complaint fail to cure the deficiencies or otherwise

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comply with the requirements set forth in the court’s initial screening order. Plaintiff again fails

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to plead facts demonstrating that any defendant violated his federal rights. For the reasons stated

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in the initial screening order, the allegations regarding the deprivation of property and the
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handling of his administrative appeals simply fail to state a cognizable claim for relief.

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Moreover, plaintiff may not sue the warden on the theory that he is liable for the conduct of his

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subordinates.

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Despite notice of the deficiencies in his allegations, and an opportunity to amend,

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plaintiff is unable to state a cognizable claim for relief. Therefore, this action must be dismissed

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without further leave to amend pursuant to 28 U.S.C. § 1915A. Noll v. Carlson, 809 F.2d 1446,

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1448 (9th Cir. 1987) (courts should provide a pro se plaintiff with an opportunity to amend after

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notifying the plaintiff of defects in the complaint); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.

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2000) (“Under Ninth Circuit case law, district courts are only required to grant leave to amend if

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a complaint can possibly be saved. Courts are not required to grant leave to amend if a complaint

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lacks merit entirely.”)

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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s amended complaint be
dismissed for failure to state a claim and that the Clerk be directed to close this case.

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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, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 13, 2013.

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