George v. Grieco et al

Filing 7

***FILED IN ERROR, PLEASE SEE #8**** ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 2/25/13. (Attachments: # 1 Envelope Certificate of Service)(cl, COURT STAFF) (Filed on 2/25/2013) Modified on 2/25/2013 (cl, COURT STAFF). Modified on 2/25/2013 (cl, COURT STAFF).

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*E-Filed 2/25/13*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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RICHARD EARL GEORGE,
Plaintiff,

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United States District Court
For the Northern District of California

No. C 12-5456 RS (PR)

v.

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ORDER OF DISMISSAL

GRECO, 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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§ 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).

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A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

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No. C 12-5456 RS (PR)
ORDER OF DISMISSAL

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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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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

United States District Court
For the Northern District of California

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B.

(2)

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

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(1)

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

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damaged his property during a search of his cell. Plaintiff’s allegations do not contain

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sufficient factual matter to state claims under § 1983. Neither the negligent nor intentional

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deprivation of property states a claim under § 1983 if the deprivation was, as was alleged

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here, random and unauthorized. See Parratt v. Taylor, 451 U.S. 527, 535–44 (1981). The

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availability of an adequate state post-deprivation remedy, e.g., a state tort action, precludes

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relief because it provides sufficient process. See Zinermon v. Burch, 494 U.S. 113, 128

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(1990). California law provides an adequate post-deprivation remedy for any property

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deprivations. Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Cal. Gov’t

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Code §§ 810–895). Accordingly, the action is DISMISSED without prejudice. The Clerk

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shall enter judgment in favor of defendants, and close the file.

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IT IS SO ORDERED.
DATED: February 25, 2013
RICHARD SEEBORG
United States District Judge

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No. C 12-5456 RS (PR)
ORDER OF DISMISSAL

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