Wildman v. Solano Sheriff's Department et al

Filing 4

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 2/18/2014 DIRECTING the Clerk to randomly assign this case to a District Judge; and the Clerk shall serve these findings and recommendations and order on plaintiff at CSP-Solano; and RECOMMENDING that the complaint be dismissed without leave to amend for failure to state a claim; the 2 motion to proceed ifp be denied as moot; and this case be closed. Referred to Judge John A. Mendez; 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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DUANE HILTON WILDMAN,

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No. 2:13-cv-2592 DAD P

Plaintiff,
v.

ORDER AND

SOLANO COUNTY SHERIFF’S DEPT.,
et al.,

FINDINGS AND RECOMMENDATIONS

Defendant.

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

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1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §

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636(b)(1).

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The court is required to screen complaints brought by prisoners who seek 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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When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and

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construe the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, to survive dismissal for failure to

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state a claim, a pro se complaint must contain more than “naked assertions,” “labels and

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conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, “[t]hreadbare recitals of the elements

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

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556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief must have

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

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pleads factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Attachments to a complaint are

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considered to be part of the complaint for purposes of a motion to dismiss for failure to state a

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claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).

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In the complaint pending before the court plaintiff presents a single claim. Plaintiff

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alleges that defendants were involved in the seizure of his property, including $5,137.00, during

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his arrest of September 21, 2013. (Complaint (Doc. No. 1) at 3, 4.) Plaintiff states the criminal

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charges brought pursuant to his arrest were dismissed. (Id. at 3.) He seeks the return of the

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property, with interest. (Id.)

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A state’s seizure of property does not violate the federal Constitution as long as the state

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has an adequate post-deprivation remedy. See Hudson v. Palmer, 468 U.S. 517, 533 (1984). The

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availability of an adequate state post-deprivation remedy, such as a state tort action, precludes

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relief because it provides sufficient procedural due process. See Zinermon v. Burch, 494 U.S.
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113, 128 (1990). California law provides such an adequate post-deprivation remedy. See Barnett

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v. Centoni, 31 F.3d 813, 816-17 (9th Cir.1994) (citing Cal. Gov’t Code §§ 810-895); City of

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Garden Grove v. Superior Court, 157 Cal.App.4th 355, 366-67 (2007) (discussing the state’s

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procedures for the return of property seized as evidence during arrest). Therefore plaintiff’s

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complaint fails to state a claim cognizable under the Civil Rights Act. See Ford v. Liberman, No.

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CV 13-341-MMM (PJW), 2013 WL 3668157, at *2 (C.D. Cal. July 12, 2013) (dismissing a civil

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rights action with prejudice where the complaint alleged that police had wrongfully refused to

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return property seized from plaintiff and his family members at the time of his arrest).

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This court’s usual practice with complaints that fail the screening standard of 28 U.S.C. §

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1915A is to allow the plaintiff a chance to amend his complaint to state a cognizable claim, that

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practice is not appropriate in every case. However, “[f]utility of amendment can, by itself, justify

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the denial of . . . leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995). Here, the

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court finds that any attempt by plaintiff to amend his complaint would be futile under the

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circumstances. “[T]here is nothing [plaintiff] can say or do to change the fact that he is seeking to

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be compensated for property that was seized by police when he was arrested and [that] the state

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has a meaningful process for him to do so.” Ford, 2013 WL 3668157 at *2. Plaintiff’s complaint

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should therefore be dismissed without leave to amend.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of Court is directed to randomly assign this case to a District Judge.

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2. The Clerk of Court shall serve these findings and recommendations and order on

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plaintiff Duane Wildman, CDCR Number AR6329, California State Prison-Solano, P.O. Box

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4000, Vacaville, California 95696-4000.

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IT IS HEREBY RECOMMENDED that:

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1. The complaint be dismissed without leave to amend for failure to state a claim.

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2. The motion to proceed in forma pauperis (Doc. No. 2) be denied as moot.

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3. This case be closed.

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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.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: February 18, 2014

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hm
wild2592.1.screening

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