Dahl v. Virga, et al.

Filing 33

ORDER signed by Magistrate Judge Allison Claire on 11/13/15 ordering that this action is dismissed with prejudice for failure to state a claim upon which relief may be granted. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT EDWARD DAHL, JR.,

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Plaintiff,

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No. 2:14-cv-0949 AC P

v.

ORDER

TIMOTHY VIRGA, et al.,

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Defendants.

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I.

Introduction

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Plaintiff is a state prisoner incarcerated under the authority of the California Department

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of Corrections and Rehabilitation (CDCR), proceeding pro se and in forma pauperis in this civil

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rights action filed pursuant to 42 U.S.C. 1983. Plaintiff has consented to the jurisdiction of the

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undersigned Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c), and Local Rule

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305(a). See ECF No. 4. Currently pending before the court is plaintiff’s Third Amended

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Complaint, filed October 13, 2015, which seeks the return or replacement of plaintiff’s missing

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property. See ECF No. 31. For the reasons set forth herein, the court finds that plaintiff has again

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failed to state a cognizable federal claim for relief, and dismisses this action with prejudice.

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II.

Background

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As recounted in the court’s order filed August 7, 2015, within the last three-and-one-half

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years, plaintiff was transferred at least eight times among five different correctional institutions,
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resulting in the delayed return or disappearance of some of plaintiff’s personal property. See ECF

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No. 27. At the court’s request, and by special appearance, the Office of the California Attorney

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General (AG) twice inquired into the location(s) of plaintiff’s property and provided detailed

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reports to the court. See ECF Nos. 22, 28. The AG’s most recent report, submitted August 28,

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2015, concludes that plaintiff is now in possession of all of his identified property.

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While supporting plaintiff in locating his property, and pursuant to 28 U.S.C. § 1915A,

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the court screened and dismissed plaintiff’s three prior complaints on the grounds that none stated

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a cognizable claim and because plaintiff sought to clarify the identity of the defendants. See ECF

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No. 1 (original complaint), dismissed by order filed September 19, 2014 (ECF No. 6); ECF No.

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15 (First Amended Complaint), dismissed by order filed April 22, 2015 (ECF No. 16); ECF No.

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20 (Second Amended Complaint), dismissed by order filed August 7, 2015 (ECF No. 27).

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In his Third Amended Complaint (TAC), plaintiff alleges that six defendant correctional

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officials are responsible for the continuing absence of plaintiff’s following property, ECF No. 31

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at 4-5:

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[M]y TV . . . some of my transcripts to my Department Operations
Manual and some case laws, some greeting cards . . . toothpaste, 2
bars of Irish spring soap, shampoo, one book called the Prisoner’s
Guide to Survival which cost $50 dollars and a book of stamps x 20
. . . my shorts and T-shirt . . . my Spanish-English Dictionary . . . a
Legal Book and . . . [book] to help me learn Spanish . . . [and] one
box of magazines[.]

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The TAC contains no express legal claim. Plaintiff seeks the following relief, ECF No. 3, 5:

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I would like my stuff to be found or replaced. . . . I just want my
stuff found or replaced and am will[ing] to work with CDCR to do
so.

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As a practical matter, the court notes that the August 28, 2015 inventory of the property in

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plaintiff’s cell provides in pertinent part that plaintiff was then in possession of, inter alia, 10

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books, 4 magazines, a dictionary, 2 Bibles, “correspondence/letters,” and “legal work (active

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case), transcripts, medical paperwork, manila envelopes.” See ECF No. 26-1 at 2 (Acuna Decl.,

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¶5), and 17 (Inventory, AG Ex. 5). Plaintiff prepared his TAC one month later, on September 28,

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2015. See ECF No. 31 at 3.

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III.

Legal Standards

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A. Screening of Complaint

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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 an officer or employee of a governmental entity. See 28 U.S.C. §

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1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims

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

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seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A

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(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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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’

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but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555 (2007)). To survive dismissal for failure to state a claim, “a complaint must contain

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sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.’”

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Iqbal at 678 (quoting Twombly at 570). “A claim has facial plausibility when the plaintiff pleads

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

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for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’

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but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing

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Twombly at 556).

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B. Prisoner Property Claims

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As explained by the United States Supreme Court, “an unauthorized intentional

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deprivation of property by a state employee does not constitute a violation of the procedural
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requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-

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deprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984).

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Where the state provides a meaningful post-deprivation remedy (e.g., as in California, a common

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law state tort action against a correctional employee in his personal capacity), only authorized,

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intentional deprivations of property by employees in their official capacities constitute actionable

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

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established state procedures, regulations, or statutes. Piatt v. McDougall, 773 F.2d 1032, 1036

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(9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987).

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Applying these standards, this court timely informed plaintiff that any further amended
complaint must clarify the following matters, see ECF No. 16 at 4:
These standards define the necessary scope of plaintiff’s allegations
in a further amended complaint, in which plaintiff must answer the
following questions as to each piece of property he asserts he is
missing – when, where, who, what and how. Specifically, according
to his best recollection, plaintiff must allege that on a specific date,
at a specific place, a specific defendant confiscated plaintiff’s
specifically identified property, according to a specific method.
The last question has two components: (1) was the method of
confiscation “formal” (pursuant to an established prison procedure,
generally including a list of the confiscated property), or “informal”
(ad hoc, pursuant to no established procedure or record); and (2)
was the method of confiscation “intentional” (deliberate), or
“unintentional” (accidental)? Plaintiff needs to answer each of
these questions for each piece of property; if several pieces of
property share the same facts, then their confiscation may be
addressed together.

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C. Exhaustion of Administrative Remedies

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The Prison Litigation Reform Act (PLRA) requires prisoners to exhaust “such

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administrative remedies as are available” before commencing a suit challenging prison

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conditions. See 42 U.S.C. § 1997e(a). Regardless of the relief sought, a prisoner must pursue a

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remedy through all levels of the prison’s grievance process “as long as some action can be

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ordered in response to the complaint.” Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005)

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(original emphasis) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). “Proper exhaustion

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demands compliance with an agency’s deadlines and other critical procedural rules because no

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adjudicative system can function effectively without imposing some orderly structure on the
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course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-1 (2006) (fn. omitted).

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Although the PLRA does not require exhaustion “when circumstances render

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administrative remedies ‘effectively unavailable,’” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir.

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2010) (citation omitted), the Ninth Circuit requires demonstration of “a good-faith effort on the

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part of inmates to exhaust a prison’s administrative remedies as a prerequisite to finding remedies

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effectively unavailable,” Albino v. Baca, 697 F.3d 1023, 1035 (9th Cir. 2012); see also Sapp, 623

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F.3d at 823-24 (to fall within an exception to the exhaustion requirement, “a prisoner must show

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that he attempted to exhaust his administrative remedies but was thwarted”).

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Applying these standards, the court noted plaintiff’s concession in his First Amended

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Complaint (FAC) that he had not exhausted his administrative remedies. See ECF No. 16 at 4-5

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(citing FAC, ECF No. 15 at 2). Specifically, plaintiff stated that he was “pretty sure” he had filed

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a relevant administrative grievance, and answered “No” to the question, “Is the grievance process

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completed?” ECF No. 15 at 2. The court informed plaintiff that he could proceed in this action

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on cognizable claims in a further amended complaint only if he “demonstrates that his

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administrative remedies were effectively unavailable.” ECF No. 16 at 4.

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IV.

Discussion
The TAC alleges that plaintiff submitted two administrative grievances, one in 2013 (Log

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No. SAC-P-13-00287) that “c[a]me up missing” after plaintiff submitted it for second level

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review, and one in 2014 (Log No. SAC-S-14-01286) that prison staff “refused to let . . . move

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forward” at the second level. See ECF No. 31 at 41. Assuming, for present purposes, that these

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statements support a prima facie demonstration that plaintiff attempted in good faith to exhaust

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his available administrative remedies but his efforts were thwarted by prison officials, see Albino,

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697 F.3d at 1035; Sapp, 623 F.3d at 823-24, the court finds, nevertheless, that the TAC fails to

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state a cognizable federal claim for relief.

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The TAC appears to make the following specific allegations against the following
defendants, ECF No. 31 at 3-4:
● That defendant Sgt. Pennisi failed “to make sure that all my
property got to me once I left the yard [at Salinas Valley State
Prison (SVSP)].”
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● That defendant property officer Prewitt failed to “pack all my
stuff” when plaintiff was released from AdSeg [at SVSP].”
● That, when plaintiff was transferred from California State PrisonSacramento (CSP-SAC) to Kern Valley State Prison, defendant
property officer Magana “was supposed to take control over my
property and make sure that I got it.”
● That plaintiff’s shorts and T-shirt “came up missing when I went
to suicide watch on defendant officers Lee and Alfred’s watch.”
● That, when plaintiff was transferred from the California Medical
Facility to CSP-SAC, “officer Porter took my Spanish-English
Dictionary.”
● In addition, plaintiff generally names as a defendant Kathleen
Dickinson, former CDCR Director of Adult Institutions.
The court finds that these allegations assert no more than negligence in packing,

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processing, inventorying and/or returning plaintiff’s property, or intentionally withholding of

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property without authorization. As explained above, only authorized and intentional deprivations

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of property constitute actionable violations of the Fourteenth Amendment’s Due Process Clause.

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None of plaintiff’s allegations assert or imply that a specific piece of property was taken from

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plaintiff and retained pursuant to official state regulation or procedure. Rather, plaintiff’s

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allegations (and the information provided by the AG) indicate that, due to plaintiff’s several

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interinstitutional transfers (and time plaintiff spent in AdSeg), his property was packed and

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repacked by several different officers, lagged behind plaintiff’s transfers, and was then received

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in staggered, even haphazard, fashion. Plaintiff’s only potential remedy is to pursue a state tort

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action against the implicated officers.

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Because the TAC does not allege that any of the several officers responsible for

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processing plaintiff’s property removed and/or retained any particular piece of plaintiff’s property

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pursuant to a state authorized policy or procedure, the court finds that the TAC fails to state a

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cognizable federal claim.

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As a general rule, a pro se litigant is entitled to notice of the deficiencies in his complaint

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and an opportunity to amend, unless the complaint’s deficiencies cannot be cured by amendment.

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See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). In the present case, the court has

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repeatedly informed plaintiff of the deficiencies in his pleadings, and he was accorded the
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opportunity to file three amended complaints. In addition, the court obtained the assistance of the

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AG to twice inquire into the whereabouts of plaintiff’s property, which in turn triggered CDCR to

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locate and provide plaintiff with all of his identified property. The court finds that further

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amendment of plaintiff’s pleading would be futile.

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V.

Conclusion

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In summary, the court finds that the allegations of plaintiff’s Third Amended Complaint,

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like the complaints previously filed in this action, fail to state a federal due process claim against

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any named defendant.

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Accordingly, IT IS HEREBY ORDERED, pursuant to 28 U.S.C. § 1915A(b)(1), that this

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action is dismissed with prejudice for failure to state a claim upon which relief may be granted.

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DATED: November 13, 2015

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