Ferrari v. Beard et al

Filing 9

ORDER signed by Magistrate Judge Allison Claire on 12/23/13 ORDERING that 7 Motion to Proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The complaint is DISMISSED with leave to file an amended complaint within 28 days from the date of service of this order.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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D. FERRARI,

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No. 2:13-cv-1849 AC P
Plaintiff,

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v.

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J. BEARD, et al.,,

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ORDER

Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and

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has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. 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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Plaintiff has submitted to the jurisdiction of the undersigned. ECF No. 6.

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Pursuant to the September 16, 2013 order (ECF No. 5), plaintiff submitted a declaration

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that makes the showing required by 28 U.S.C. § 1915(a). ECF No. 7. Accordingly, the request to

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

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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, 555 (2007). “The pleading

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must contain something more. . . than . . . a statement of facts that merely creates a suspicion [of]

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a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and

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Procedure § 1216, pp. 235-35 (3d ed. 2004). “[A] complaint must contain sufficient factual

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

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566 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id.

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In reviewing a complaint under this standard, the court must accept as true the allegations
of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740
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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421(1969).
Plaintiff names the following as defendants: CDCR1 Secretary J. Beard; CSP-Solano2

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Warden G. Swarthout, and Correctional Officer (C/O) Broadstone.3 Plaintiff claims that on

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September 3, 2012, a search was conducted in Facility C, Building 16 where plaintiff was housed.

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The search was part of an institution-wide search. Plaintiff and all the other inmates in C-16,

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prior to being compelled to exit the building, were required to strip for inspection. After nearly

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four hours outside, the inmates returned to find property from their lockers and under their bunks

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strewn and scattered. In addition, plaintiff found that much of his property was missing. Inmates

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were told to speak with a C/O Cowen (not a defendant) about any state-issued property that had

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been removed and to another C/O, Murphy, also not a party, about questions regarding personal

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property. Plaintiff attempted to speak with the warden, who was in the building. When plaintiff

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asked if he could retrieve his property from the pile, Warden Swarthout told plaintiff he would

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speak to his staff about the matter. The defendant warden, plaintiff alleges, did nothing and “a

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multitude of personal property was carted off” as trash. Plaintiff was never able to retrieve any

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portion of his personal property, including both replaceable and irreplaceable items. Plaintiff

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claims he has yet to hear from the state agency with which he filed a complaint. ECF No. 1 at 3-

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5.

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Defendants

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Although CDCR Secretary Beard and C/O Broadstone are named as defendants, the body

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of the complaint contains no allegations against them.

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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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California Department of Corrections and Rehabilitation.
California State Prison - Solano.
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Alternatively spelled, “Broadston.”
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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). The absence of factual

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allegations connecting Secretary Beard and C/O Broadstone to the alleged deprivation of rights is

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fatal to the claims against these defendants. Both will be dismissed, but plaintiff will be granted

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leave to amend.

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Moreover, supervisory personnel such as defendants Beard and Swarthout are generally

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not liable under § 1983 for the actions of their employees under a theory of respondeat superior

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

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him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley,

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607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert.

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denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

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official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982).

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While there is no respondeat superior liability under § 1983, a supervisor may be liable for

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constitutional violations of his/her subordinates but only “if the supervisor participated in or

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directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v.

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List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also, Snow v. McDaniel, 681 F.3d 978, 989 (9th

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Cir. 2012) (citing, id.). “Supervisors can be held liable for: 1) their own culpable action or

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inaction in the training, supervision, or control of subordinates; 2) their acquiescence in the

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constitutional deprivation of which a complaint is made; or 3) for conduct that showed a reckless

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or callous indifference to the rights of others.” Cunningham v. Gates, 229 F.3d 1271, 1292 (9th

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Cir. 2000). Defendants Beard and Swarthout will be dismissed but plaintiff will be granted leave

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to amend.
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The Search

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Plaintiff has no claim under the Fourth Amendment for an unreasonable search, if that is

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what he intends. U. S. v. Kincade, 739 F.3d 813, 822 n. 17 (9th Cir. 2004), quoting Hudson v.

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Palmer, 468 U.S. 517, 526 (1983) (A[S]ociety is not prepared to recognize as legitimate any

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subjective expectation of privacy that a prisoner might have in his prison cell.... [A]ccordingly,

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the Fourth Amendment proscription against unreasonable searches does not apply within the

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confines of the prison cell.@); Somers v. Thurman, 109 F.3d 614, 617 (9th Cir. 1997), quoting id.

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The Property Deprivation

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The United States Supreme Court has held that Aan unauthorized intentional deprivation of

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

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Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the

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

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meaningful postdeprivation remedy, only authorized, intentional deprivations constitute

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

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pursuant to established state procedures, regulations, or statutes. Piatt v. McDougall, 773 F.2d

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1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th

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Cir. 1987). The California Legislature has provided a remedy for tort claims against public

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officials in the California Government Code, '' 900, et seq.

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It is unclear whether plaintiff is alleging that the deprivation of his property was

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intentional or unintentional, authorized or unauthorized. The search appears to have been

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authorized but the deprivation of property does not plainly appear to have been either intentional

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or authorized. The complaint will be dismissed but plaintiff will be granted leave to amend to

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provide the necessary factual allegations to support a claim of an authorized and intentional

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deprivation of property.

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General Principals Governing Amendment

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

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complained of have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625

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F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how each named
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defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some

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affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of

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official participation in civil rights violations are not sufficient. See Ivey v. Board of Regents,

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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 order to

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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 Lacey v. Maricopa

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County, 693 F.3d 896, 927 (9th Cir. 2012) ) (“the general rule is that an amended complaint

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super[s]edes the original complaint and renders it without legal effect... .”) Once plaintiff files an

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amended complaint, the original pleading no longer serves any function in the case. Therefore, in

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an amended complaint, as in an original complaint, each claim and the involvement of each

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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. Plaintiff

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

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amended complaint within twenty-eight days from the date of service of this order. Failure to file

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an amended complaint will result in a recommendation that the action be dismissed.

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DATED: December 23, 2013

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