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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*E-Filed 1/14/13*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

Plaintiff,

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v.

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No. C 12-4694 RS (PR)

JESUS CHIPREZ,

C. QUEZADA, et al.,
Defendants.

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/

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INTRODUCTION

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This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state

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prisoner. The Court now reviews the complaint pursuant to 28 U.S.C. § 1915A(a).
DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity.

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See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and

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dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may

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be granted or seek monetary relief from a defendant who is immune from such relief. See id.

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No. C 12-4694 RS (PR)
ORDER DISMISSING COMPLAINT

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§ 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica

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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

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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions

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cast in the form of factual allegations if those conclusions cannot reasonably be drawn from

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United States District Court
For the Northern District of California

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the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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that a right secured by the Constitution or laws of the United States was violated, and

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that the alleged violation was committed by a person acting under the color of state law. See

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West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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(1)
(2)

Legal Claims
Plaintiff alleges that defendants, correctional officers at Salinas Valley State Prison,

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took and never returned his property. Plaintiff’s allegations do not contain sufficient factual

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matter to state claims under § 1983. Plaintiff must allege specific facts as to what property

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was taken and not returned, and exactly how the listed defendants were involved in the

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alleged deprivation. Merely listing defendants and alleging in a conclusory fashion that they

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deprived him of property is not sufficient.

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Accordingly, the complaint is DISMISSED with leave to amend. Plaintiff shall file

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an amended complaint within 30 days from the date this order is filed. The amended

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complaint must address all the deficiencies listed above, and include the caption and civil

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case number used in this order (12-4694 RS (PR)) and the words FIRST AMENDED

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COMPLAINT on the first page. Because an amended complaint completely replaces the

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previous complaints, plaintiff must include in his first amended complaint all the claims he

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No. C 12-4694 RS (PR)
ORDER DISMISSING COMPLAINT

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wishes to present and all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d

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1258, 1262 (9th Cir. 1992). Any claims not raised in the first amended complaint will be

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deemed waived. Plaintiff may not incorporate material from the prior complaint by

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reference. Failure to file an amended complaint in accordance with this order will result in

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dismissal of this action without further notice to plaintiff.

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Plaintiff is reminded that neither the negligent nor intentional deprivation of property

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states a claim under § 1983 if the deprivation was random and unauthorized. See Parratt v.

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Taylor, 451 U.S. 527, 535–44 (1981). The availability of an adequate state post-deprivation

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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

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Zinermon v. Burch, 494 U.S. 113, 128 (1990). California law provides an adequate post-

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deprivation remedy for any property deprivations. Barnett v. Centoni, 31 F.3d 813, 816-17

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(9th Cir. 1994) (citing Cal. Gov’t Code §§ 810–895).

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When state officials deprive an inmate of his property pursuant to state regulations

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and statutes, however, due process mandates a meaningful hearing on the matter. See Logan

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v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982); Armendariz v. Penman, 31 F.3d 860,

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866 (9th Cir. 1994), aff’d in part on relevant grounds and vacated in part on other grounds on

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reh’g en banc, 75 F.3d 1311 (9th Cir. 1996) (en banc).

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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address by filing a separate paper with the clerk headed “Notice of

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Change of Address.” He must comply with the Court’s orders in a timely fashion or ask for

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an extension of time to do so. Failure to comply may result in the dismissal of this

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action pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED: January 14, 2013
RICHARD SEEBORG
United States District Judge

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No. C 12-4694 RS (PR)
ORDER DISMISSING COMPLAINT

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