Howell v. Tran et al

Filing 9

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/5/2017 GRANTING plaintiff's 2 request to proceed IFP and DISMISSING the complaint with leave to amend within 30 days. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KAREEM J. HOWELL,

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No. 2:16-cv-0620-EFB P

Plaintiff,

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v.

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D. TRAN, et al.,

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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 He seeks leave to proceed in forma pauperis.
I.

Request to Proceed In Forma Pauperis
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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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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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. See E.D. Cal. Local
Rules, Appx. A, at (k)(4).
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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)

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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.

Screening Order

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Plaintiff’s complaint (ECF No. 1) alleges that his legal property was wrapped in a

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bedsheet. He claims that officers Tran and Thompson claimed it was a “weight bag” and illegally

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confiscated it. When his legal property was not returned, plaintiff filed an appeal. Plaintiff
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asserts that when the officers responded to the appeal, they lied and claimed that the bedsheet

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contained magazines. The complaint purports to assert claims of retaliation and conspiracy to

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obstruct justice. Having reviewed the complaint pursuant to § 1915A, the court finds that it must

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be dismissed with leave to amend for failure to state a claim.

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Plaintiff fails to state a viable First Amendment retaliation claim because he has not

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alleged that a defendant took some adverse action against him because of his protected conduct,

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and that such action chilled the exercise of his First Amendment rights, and did not reasonably

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advance a legitimate correctional goal. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.

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2005). If plaintiff intends to assert a retaliation claim, he must allege facts showing that

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defendants were aware of his prior engagement in protected conduct and that his protected

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conduct was “the ‘substantial’ or ‘motivating’ factor” behind their alleged misconduct. Brodheim

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v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). Generally speaking, a retaliation claim cannot rest

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on the logical fallacy of post hoc, ergo propter hoc, literally, “after this, therefore because of

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this.” See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000).

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Further, the complaint cannot support any claim based on a conspiracy, which requires

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allegations of specific facts showing that two or more persons intended to accomplish an unlawful

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objective of causing plaintiff harm and took some concerted action in furtherance thereof.

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Gilbrook v. City of Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999); Margolis v. Ryan, 140

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F.3d 850, 853 (9th Cir. 1998) (to state claim for conspiracy under § 1983, plaintiff must allege

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facts showing an agreement among the alleged conspirators to deprive him of his rights); Delew

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v. Wagner, 143 F.3d 1219, 1223 (9th Cir. 1998) (to state claim for conspiracy under § 1983,

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plaintiff must allege at least facts from which such an agreement to deprive him of rights may be

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inferred); Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (per curiam) (conclusory

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allegations of conspiracy insufficient to state a valid § 1983 claim); Karim-Panahi v. Los Angeles

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Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988).

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Moreover, any due process claim predicated on the confiscation of plaintiff’s property

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fails because he has not alleged facts showing that he had no post deprivation process available to

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him. 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.”2 Hudson v. Palmer, 468 U.S. 517, 533 (1984). Here, California’s tort claim

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process provides an adequate postdeprivation remedy Barnett v. Centoni, 31 F.3d 813, 816-17

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(9th Cir. 1994) (per curiam) (“[A] negligent or intentional deprivation of a prisoner’s property

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fails to state a claim under section 1983 if the state has an adequate post deprivation remedy.”).

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Plaintiff cannot state a proper due process claim because California offers an adequate post

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deprivation remedy.

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There are also no constitutional requirements regarding how a grievance system is

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operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner’s

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claimed loss of a liberty interest in the processing of his appeals does not violate due process

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because prisoners lack a separate constitutional entitlement to a specific prison grievance system).

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Thus, plaintiff may not impose liability on a defendant simply because he played a role in

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processing plaintiff’s appeals or because the appeals process was otherwise rendered unfair. See

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Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (an administrative “grievance procedure is a

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procedural right only, it does not confer any substantive right upon the inmates. Hence, it does

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not give rise to a protected liberty interest requiring the procedural protections envisioned by the

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fourteenth amendment.” (internal quotations omitted)). Simply characterizing as lies the reasons

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that were stated for denying plaintiff’s appeal does not circumvent this rule. Hence, plaintiff’s

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allegations here regarding the handling of his appeal fail to state a claim.

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For these reasons, the complaint is dismissed. Plaintiff will be granted leave to file an

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amended complaint, if he can allege a cognizable legal theory against a proper defendant and

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A due process claim is not barred, however, where the deprivation is foreseeable and
will occur, if at all, at a predictable point in time, such that the state can be reasonably expected to
make pre-deprivation process available. See Zinermon v. Burch, 494 U.S. 113, 136-39 (1990).
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sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-

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27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend

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to correct any deficiency in their complaints). Should plaintiff choose to file an amended

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complaint, the amended complaint shall clearly set forth the claims and allegations against each

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defendant. Any amended complaint must cure the deficiencies identified above and also adhere

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to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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The court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.

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IV.

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Accordingly, IT IS HEREBY ORDERED that:

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Summary of Order

1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted.
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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

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

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Rehabilitation filed concurrently herewith.

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3. The complaint is dismissed with leave to amend within 30 days. The complaint

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must bear the docket number assigned to this case and be titled “Amended

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Complaint.” Failure to comply with this order will result in dismissal of this

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action for failure to prosecute. If plaintiff files an amended complaint stating a

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cognizable claim the court will proceed with service of process by the United

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States Marshal.

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Dated: October 5, 2017.

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