Sammons v. Spearman et al

Filing 5

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/6/2017 GRANTING plaintiff's 2 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. Plaintiff's complaint is DISMISSED with leave to file an amended complaint within 30 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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ALEXANDER DESEAN SAMMONS,

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Plaintiff,

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No. 2:17-cv-1445 CKD P

v.

ORDER

SPEARMAN, et al.,

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Defendants.

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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) and plaintiff has consented to have all matters in this action before a United States

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Magistrate Judge. See 28 U.S.C. § 636(c).
Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a

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declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the

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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.

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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding

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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by

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the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account

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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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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 complaint, plaintiff complains about the loss of personal property. The United
States Supreme Court has held that “an unauthorized intentional deprivation of property by a state
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employee does not constitute a violation of the procedural requirements of the Due Process

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Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is

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

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meaningful post-deprivation remedy, only authorized, intentional deprivations constitute

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actionable violations of the Due Process Clause. An authorized deprivation is one carried out

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pursuant to established state procedures, regulations, or statutes. Piatt v. McDougall, 773 F.2d

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1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th

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Cir. 1987).

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In the instant case, plaintiff has not alleged any facts which suggest that the deprivation

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was 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. Since plaintiff has not attempted to

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

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him of property without due process of the law. The court concludes that this claim must,

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therefore, be dismissed as frivolous. See 28 U.S.C. § 1915(e)(2). However, plaintiff will be

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granted an opportunity to amend to cure the deficiencies in his pleadings.

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Plaintiff is informed that the court cannot refer to a prior pleading in order to make

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plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any

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function in the case. Therefore, in an amended complaint, as in an original complaint, each claim

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and the involvement of each defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees

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shall be collected and paid in accordance with this court’s order to the Director of the California

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Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of this order, the Civil Rights Act, the Federal

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Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must bear the

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docket number assigned this case and must be labeled “Amended Complaint.” Failure to file an

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amended complaint in accordance with this order will result in a recommendation that this action

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be dismissed.

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Dated: November 6, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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