Kessler v. California Department of Corrections

Filing 10

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/28/2015 ORDERING 3 Plaintiff's Application to proceed in forma pauperis is GRANTED; Plaintiff shall pay the statutory filing fee of $350.00; all payments shall be collected in accordance with the notice to the CDRC filed concurrently herewith; this action is DISMISSED for failure to state a claim and the Clerk is directed to close the case. CASE CLOSED (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WESLEY WILLIAM KESSLER,

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Plaintiff,

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No. 2:15-cv-0617-EFB P

v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,

ORDER GRANTING IFP AND DISMISSING
ACTION FOR FAILURE TO STATE A
CLAIM PURSUANT TO 28 U.S.C. § 1915A

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. § 1983.1 In addition to filing a complaint, plaintiff seeks leave to proceed in forma

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pauperis.
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I.

Request to Proceed In Forma Pauperis

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Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).
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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect
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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.
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§ 1915(b)(1) and (2).
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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent (ECF No. 1 at 4). See
E.D. Cal. Local Rules, Appx. A, at (k)(4).
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II.

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

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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, 556

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U.S. 662, 679 (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.” Iqbal, 556 U.S. at

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678.

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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, 556 U.S. at 678. 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, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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

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III.

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Screening Order
The court has reviewed plaintiff’s complaint pursuant to § 1915A and finds it must be

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dismissed for failure to state a claim. Through the instant action, plaintiff seeks the return of his

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address book, which was allegedly taken by defendant Rey during a search of plaintiff’s cell. See

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ECF No. 1. Plaintiff does not know why defendant Rey searched his cell.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988). Plaintiff does not identify any specific claims for relief, but his

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allegations suggest that he wishes to state a claim for the loss of property without due process. As

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set forth below, the allegations fail to state a cognizable claim under the applicable standards.

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The Due Process Clause protects prisoners from being deprived of property without due

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process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and prisoners have a protected

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interest in their personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). The United

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States Supreme Court has held, however, that “an 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). California provides an adequate

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postdeprivation remedy. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (per curiam)

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(“[A] negligent or intentional deprivation of a prisoner’s property fails to state a claim under

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section 1983 if the state has an adequate post deprivation remedy.”). Plaintiff cannot state a

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proper due process claim because he has an adequate post-deprivation remedy under California

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law.

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Because the deficiencies in plaintiff’s claim cannot be cured by further amendment, the

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complaint is dismissed without leave to amend. Silva v. Di Vittorio, 658 F.3d 1090, 1105 (9th

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Cir. 2011) (“Dismissal of a pro se complaint without leave to amend is proper only if it is

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absolutely clear that the deficiencies of the complaint could not be cured by amendment.”

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(internal quotation marks omitted)); Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A]
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district court should grant leave to amend even if no request to amend the pleading was made,

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unless it determines that the pleading could not be cured by the allegation of other facts.”).

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IV.

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Summary of Order
Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 3) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in

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accordance with the notice to the California Department of Corrections and Rehabilitation

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filed concurrently herewith.

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3. This action is dismissed for failure to state a claim and the Clerk is directed to close the
case.
DATED: April 28, 2015.

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