Simmons v. Kernan

Filing 4

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/5/2017 GRANTING plaintiff's 2 request to proceed IFP; and the Clerk shall assign a district court judge to this case. IT IS RECOMMENDED that plaintiff's complaint be dismissed; and this case be closed. Assigned and referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT L. SIMMONS,

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Plaintiff,

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No. 2:17-cv-0629 CKD P

v.

ORDER AND

SCOTT KERNAN,

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FINDINGS AND RECOMMENDATIONS

Defendant.

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I. Introduction
Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §

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1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §

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636(b)(1).

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Plaintiff requests leave to proceed in forma pauperis and has submitted a declaration that

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makes the showing required by 28 U.S.C. § 1915(a). However, the court will not assess a filing

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fee at this time. Instead, the undersigned will recommend summary dismissal of the complaint.

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II. Screening Standard
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, 551 U.S. 89, 94 (2007), and

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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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III. Discussion

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In his complaint, plaintiff alleges a laptop computer was stolen from an unidentified

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defendant and that the laptop contained “personal and confidential identification numbers and

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information” pertaining to plaintiff. Plaintiff references a letter from California Correctional

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Health Care Services informing plaintiff of a “potential breach” of his information on February

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25, 2016, when an unencrypted laptop was stolen from the vehicle of one of their employees.

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First, plaintiff is required to establish standing for each claim he asserts. DaimlerChrysler

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Corp. v. Cuno, 547 U.S. 332, 352 (2006). If a plaintiff has no standing, the court has no subject

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matter jurisdiction. Nat’l Wildlife Fed’n v. Adams, 629 F.2d 587, 593 n. 11 (9th Cir. 1980)

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(“[B]efore reaching a decision on the merits, we [are required to] address the standing issue to

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determine if we have jurisdiction.”). There are three requirements that must be met for a plaintiff

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to have standing: (1) the plaintiff must have suffered an “injury in fact”—an invasion of a legally

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protected interest which is both concrete and particularized and actual or imminent; (2) there must

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be a causal connection between the injury and the conduct complained of; and (3) it must be

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likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife,

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504 U.S. 555, 560-61 (1992); Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835, 847

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(9th Cir. 2001) (en banc). Here, plaintiff has not shown he has standing to sue because the

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complaint demonstrates only that the theft of the state’s laptop has the potential to injure plaintiff.

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Plaintiff alleges no actual misuse of his personal information stemming from the theft.

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Also, the complaint fails to state a claim for relief under federal law. The Fourth

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Amendment governs the reasonableness of government searches and seizures. Here, no

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government search or seizure is alleged. The Due Process Clause of the Fourteenth Amendment

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protects prisoners from being deprived of property without due process of law. Wolff v.

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McDonnell, 418 U.S. 539, 556 (1974). However, “[i]t is well established that negligent conduct

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is ordinarily not enough to state a claim alleging a denial of liberty or property under the

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Fourteenth Amendment. See Doe v. Beard, 2014 WL 3507196, *6 (C.D. Cal. July 14, 2014),

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citing Daniels v. Williams, 474 U.S. 327, 330 (1986); Davidson v. Cannon, 474 U.S. 344, 347

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(1986) (“[T]he Due Process Clause of the Fourteenth Amendment is not implicated by the lack of

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due care of an official causing unintended injury to life, liberty or property. In other words, where

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a government official is merely negligent in causing the injury, no procedure for compensation is

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constitutionally required.”).

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Plaintiff asserts he is not satisfied with the resolution of certain matters he pursued

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through his prison’s grievance process with respect to the stolen laptop. However, plaintiff does

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not state a valid claim for violation of due process under the Fourteenth Amendment as plaintiff
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suggests because plaintiff has no constitutional right to a prison grievance procedure at all and

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therefore no right to a particular outcome. Ramirez v. Galazza, 334 F.3d 850, 860 (9th Cir.

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2003).

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Because plaintiff fails to state a claim upon which relief can be granted under federal law,

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the court does not have jurisdiction over any claims arising under California law. 28 U.S.C. §

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1330 et seq.

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IV. No Leave to Amend

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If the court finds that a complaint should be dismissed for failure to state a claim, the court
has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-

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30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the

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defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see

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also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given

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leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely

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clear that the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v.

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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear

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that a complaint cannot be cured by amendment, the court may dismiss without leave to amend.

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Cato, 70 F.3d at 1005-06.
The undersigned finds that, as set forth above, plaintiff lacks standing and plaintiff’s

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allegations show only speculative injury. Furthermore, the court does not believe any addition of

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facts to plaintiff’s complaint could save the claims he presents. As it appears amendment would

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be futile, the court will recommend dismissal of plaintiff’s complaint without leave to amend.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 6) is granted; and

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2. The Clerk of the Court assign a district court judge to this case.

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IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s complaint be dismissed; and

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2. This case be closed.

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These findings and recommendations will be 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 Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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Dated: April 5, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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simm0629.lptp

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