George v. Grieco et al

Filing 8

ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 2/25/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 2/25/2013)

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1 *E-Filed 2/25/13* 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN FRANCISCO DIVISION 7 8 RICHARD EARL GEORGE, Plaintiff, 9 10 United States District Court For the Northern District of California No. C 12-5456 RS (PR) v. 11 ORDER OF DISMISSAL GRECO, et al., Defendants. 12 / 13 INTRODUCTION 14 This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state 15 16 prisoner. The Court now reviews the complaint pursuant to 28 U.S.C. § 1915A(a). DISCUSSION 17 18 19 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner 20 seeks redress from a governmental entity or officer or employee of a governmental entity. 21 See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and 22 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may 23 be granted or seek monetary relief from a defendant who is immune from such relief. See id. 24 § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica 25 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 26 27 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) 28 No. C 12-5456 RS (PR) ORDER OF DISMISSAL 1 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 2 plausibility when the plaintiff pleads factual content that allows the court to draw the 3 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 4 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions 5 cast in the form of factual allegations if those conclusions cannot reasonably be drawn from 6 the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 8 that a right secured by the Constitution or laws of the United States was violated, and 9 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 10 B. (2) West v. Atkins, 487 U.S. 42, 48 (1988). 11 (1) 12 Legal Claims Plaintiff alleges that defendants, correctional officers at Salinas Valley State Prison, 13 damaged his property during a search of his cell. Plaintiff’s allegations do not contain 14 sufficient factual matter to state claims under § 1983. Neither the negligent nor intentional 15 deprivation of property states a claim under § 1983 if the deprivation was, as was alleged 16 here, random and unauthorized. See Parratt v. Taylor, 451 U.S. 527, 535–44 (1981). The 17 availability of an adequate state post-deprivation remedy, e.g., a state tort action, precludes 18 relief because it provides sufficient process. See Zinermon v. Burch, 494 U.S. 113, 128 19 (1990). California law provides an adequate post-deprivation remedy for any property 20 deprivations. Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Cal. Gov’t 21 Code §§ 810–895). Accordingly, the action is DISMISSED without prejudice. The Clerk 22 shall enter judgment in favor of defendants, and close the file. 23 24 IT IS SO ORDERED. DATED: February 25, 2013 RICHARD SEEBORG United States District Judge 25 26 27 28 No. C 12-5456 RS (PR) ORDER OF DISMISSAL 2

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