Diaz v. Hurley et al

Filing 32

ORDER signed by Magistrate Judge Kendall J. Newman on 9/26/2017 DENYING without prejudice plaintiff's 28 motion.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIGUEL ENRIQUE DIAZ,

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No. 2:15-cv-2083 GEB KJN P

Plaintiff,
v.

ORDER

ASSOCIATE WARDEN HURLEY, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis. This action

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proceeds on plaintiff’s claims that while plaintiff was housed at California Medical Facility,

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defendant Rodriguez retaliated against plaintiff for filing grievances concerning plaintiff’s alleged

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failure to receive a pay raise, in violation of the First Amendment, and violated plaintiff’s Eighth

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Amendment rights by failing to provide ice when temperatures were over 100 degrees in the law

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library. Plaintiff also alleges that defendants Hurley and Hall failed to train and discipline; that

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defendants Hurley, Hall and Farmer failed to take corrective measures, and that defendants

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Rodriguez, Hurley, Hall and Farmer discriminated against plaintiff. Defendants’ motion to

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revoke plaintiff’s in forma pauperis status and to dismiss plaintiff’s complaint is presently

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pending, and will be addressed seperately.

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Although plaintiff was recently transferred to the California State Prison in Sacramento
(“CSP-Sacramento”), his last two filings reflect that he has been returned to the California

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Medical Facility. (ECF Nos. 28, 29.)
On September 1, 2017, plaintiff filed a motion styled, “Motion for Contempt of Court and

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Monetary Sanctions.” (ECF No. 28.)1 Plaintiff claims he was placed in administrative

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segregation on July 6, 2017, for allegedly false allegations of misconduct. Plaintiff claims that all

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of his legal property was taken, but only some of it was returned. He also claims that on August

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28, 2017, he received the declaration from the Deputy Attorney General in case No. 2:14-cv-2705

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JAM CKD twenty days after it was filed with the court. He alleges that he was denied all

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physical access to the law library at CSP-Sacramento from July 25, 2017, through August 15,

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2017. (ECF No. 28 at 2.) Plaintiff claims he was placed on the “bus circuit” in retaliation for

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filing a civil rights lawsuit , and that his typewriter “disappeared” just before he was placed on the

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bus to CSP-Sacramento. Plaintiff claims that 45 days have passed and he has not been provided a

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disciplinary hearing. Plaintiff seeks an order requiring defendants to return plaintiff’s property,

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and, in the alternative, to pay $500.00 dollars a day until they do so. Plaintiff also seeks

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replacement of his typewriter.
First, plaintiff’s motion for contempt of court and sanctions is not well taken because

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plaintiff identifies no order that defendants in this case have allegedly violated.

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Second, plaintiff’s request concerning property is unavailing. The United States Supreme

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Court has held that “an unauthorized intentional deprivation of property by a state employee does

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not constitute a violation of the procedural requirements of the Due Process Clause of the

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Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.”

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Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, where the state provides a meaningful

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postdeprivation remedy, only authorized, intentional deprivations constitute actionable violations

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

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state procedures, regulations, or statutes. Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir.

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

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In his motion, plaintiff has not alleged any facts which suggest that the deprivation was
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Review of the cases referred to by plaintiff reflects that he also filed the instant motion in his
other two cases: No. 1:13-cv-1627 DAD MJS, and No. 2:14-cv-2705 JAM CKD.
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authorized. 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. Because plaintiff has not attempted

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to seek redress in the state system, he cannot sue in federal court on the claim that the state

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deprived him of property without due process of the law. Thus, his motion for return of property

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is denied.
Third, plaintiff’s claims concerning a violation of his due process rights in connection

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with disciplinary proceedings in July of 2017 or alleged retaliation in July or August of 2017, or

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delayed legal mail in August of 2017, are not at issue in this action.2 Plaintiff does not attribute

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any of the new allegations as committed by defendants Rodriguez, Hurley, Hall or Farmer.

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Moreover, such claims (a) do not arise out of the same transaction, occurrence, or series of

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transactions or occurrences alleged in the instant action, and (b) do not present questions of law or

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fact common to all defendants named herein. Thus, such claims are not properly raised in this

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action, but must be raised in separate actions. Fed. R. Civ. P. 20(a)(2).

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Fourth, when prisoners are transferred, it is common for such prisoners to experience a

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delay in receiving their property, including legal materials, because the prisoner is transferred

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separately from his property. Moreover, by separate order, plaintiff was granted an extension of

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time in which to oppose defendants’ motion.
For all of the above reasons, IT IS HEREBY ORDERED that plaintiff’s motion (ECF No.

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28) is denied without prejudice.

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Dated: September 26, 2017

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/diaz2083.sanc

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In addition, a prisoner may bring no § 1983 action until he has exhausted such administrative
remedies as are available to him. 42 U.S.C. § 1997e(a). The requirement is mandatory. Booth v.
Churner, 532 U.S. 731, 741 (2001). California prisoners or parolees may appeal “departmental
policies, decisions, actions, conditions, or omissions that have a material adverse effect on the[ir]
welfare. . . .” Cal. Code Regs. tit. 15, §§ 3084.1, et seq.
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