Chiprez v. Quezada et al

Filing 7

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 1/14/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 1/14/2013)

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1 2 3 *E-Filed 1/14/13* 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN FRANCISCO DIVISION 11 12 ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND Plaintiff, 13 v. 14 15 No. C 12-4694 RS (PR) JESUS CHIPREZ, C. QUEZADA, et al., Defendants. 16 / 17 INTRODUCTION 18 This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state 19 20 prisoner. The Court now reviews the complaint pursuant to 28 U.S.C. § 1915A(a). DISCUSSION 21 22 23 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner 24 seeks redress from a governmental entity or officer or employee of a governmental entity. 25 See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and 26 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may 27 be granted or seek monetary relief from a defendant who is immune from such relief. See id. 28 No. C 12-4694 RS (PR) ORDER DISMISSING COMPLAINT 1 § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica 2 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 3 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) 5 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 6 plausibility when the plaintiff pleads factual content that allows the court to draw the 7 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 8 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions 9 cast in the form of factual allegations if those conclusions cannot reasonably be drawn from 10 United States District Court For the Northern District of California 4 the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 11 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 12 that a right secured by the Constitution or laws of the United States was violated, and 13 that the alleged violation was committed by a person acting under the color of state law. See 14 West v. Atkins, 487 U.S. 42, 48 (1988). 15 B. 16 (1) (2) Legal Claims Plaintiff alleges that defendants, correctional officers at Salinas Valley State Prison, 17 took and never returned his property. Plaintiff’s allegations do not contain sufficient factual 18 matter to state claims under § 1983. Plaintiff must allege specific facts as to what property 19 was taken and not returned, and exactly how the listed defendants were involved in the 20 alleged deprivation. Merely listing defendants and alleging in a conclusory fashion that they 21 deprived him of property is not sufficient. 22 Accordingly, the complaint is DISMISSED with leave to amend. Plaintiff shall file 23 an amended complaint within 30 days from the date this order is filed. The amended 24 complaint must address all the deficiencies listed above, and include the caption and civil 25 case number used in this order (12-4694 RS (PR)) and the words FIRST AMENDED 26 COMPLAINT on the first page. Because an amended complaint completely replaces the 27 previous complaints, plaintiff must include in his first amended complaint all the claims he 28 No. C 12-4694 RS (PR) ORDER DISMISSING COMPLAINT 2 1 wishes to present and all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 2 1258, 1262 (9th Cir. 1992). Any claims not raised in the first amended complaint will be 3 deemed waived. Plaintiff may not incorporate material from the prior complaint by 4 reference. Failure to file an amended complaint in accordance with this order will result in 5 dismissal of this action without further notice to plaintiff. 6 Plaintiff is reminded that neither the negligent nor intentional deprivation of property 7 states a claim under § 1983 if the deprivation was random and unauthorized. See Parratt v. 8 Taylor, 451 U.S. 527, 535–44 (1981). The availability of an adequate state post-deprivation 9 remedy, e.g., a state tort action, precludes relief because it provides sufficient process. See United States District Court For the Northern District of California 10 Zinermon v. Burch, 494 U.S. 113, 128 (1990). California law provides an adequate post- 11 deprivation remedy for any property deprivations. Barnett v. Centoni, 31 F.3d 813, 816-17 12 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810–895). 13 When state officials deprive an inmate of his property pursuant to state regulations 14 and statutes, however, due process mandates a meaningful hearing on the matter. See Logan 15 v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982); Armendariz v. Penman, 31 F.3d 860, 16 866 (9th Cir. 1994), aff’d in part on relevant grounds and vacated in part on other grounds on 17 reh’g en banc, 75 F.3d 1311 (9th Cir. 1996) (en banc). 18 It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 19 informed of any change of address by filing a separate paper with the clerk headed “Notice of 20 Change of Address.” He must comply with the Court’s orders in a timely fashion or ask for 21 an extension of time to do so. Failure to comply may result in the dismissal of this 22 action pursuant to Federal Rule of Civil Procedure 41(b). 23 24 IT IS SO ORDERED. DATED: January 14, 2013 RICHARD SEEBORG United States District Judge 25 26 27 28 No. C 12-4694 RS (PR) ORDER DISMISSING COMPLAINT 3

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