Sneed v. Peery, et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/10/15 vacating 17 FINDINGS AND RECOMMENDATIONS. Also, RECOMMENDING that plaintiff's amended complaint be dismissed for failure to state a claim upon which relief can be granted; and this case be closed. Referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DONNIE KAY SNEED,
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Plaintiff,
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v.
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S. PEERY, et al.,
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No. 2:15-cv-0921 WBS CKD P
ORDER AND
FINDINGS AND RECOMMENDATIONS
Defendants.
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Plaintiff is a California prisoner proceeding pro se. On October 6, 2015, the court
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recommended that this action be dismissed for plaintiff’s failure to file an amended complaint as
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required by this court’s August 21, 2015 order. Plaintiff has now filed an amended complaint.
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Good cause appearing, the October 6, 2015 findings and recommendations will be vacated.
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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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In order to avoid dismissal for failure to state a claim a complaint must contain more than
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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim
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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A
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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
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at 678. 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, 127 S. Ct. 2197, 2200 (2007),
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and 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).
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In his amended complaint, plaintiff alleges, as he did in his original complaint, that
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correctional officers either stole or destroyed his personal property. As plaintiff was informed
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when his original complaint was dismissed with leave to amend, the United States Supreme Court
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has held that an unauthorized intentional deprivation of property by a state employee does not
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generally constitute a violation of the Due Process Clause of the Fourteenth Amendment.
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Hudson v. Palmer, 468 U.S. 517, 533 (1984). Plaintiff fails to point to anything suggesting
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deviation from that general rule is warranted here. Because plaintiff fails to state a claim upon
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which relief can be granted with respect to his allegations of intentional and unauthorized
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deprivation of personal property, or in any other respect, plaintiff’s amended complaint should be
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dismissed. Because granting leave to amend a second time appears futile, this case should be
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closed.
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/////
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In accordance with the above, IT IS HEREBY ORDERED that the court’s October 6,
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2015 findings and recommendations are vacated.
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IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s amended complaint be dismissed for failure to state a claim upon which
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relief can be granted; and
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2. 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, plaintiff may file written objections
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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings
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and Recommendations.” Plaintiff is advised that failure to file objections within the specified
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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991).
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Dated: November 10, 2015
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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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