de Cruz v. Secretary of the California Department of Corrections and Rehabilitation et al

Filing 15

Order of Dismissal with Leave to Amend. Signed by Judge William Alsup on 11/17/2021. (ec, COURT STAFF) (Filed on 11/17/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GERALD DEAN DECRUZ,

United States District Court
Northern District of California

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.

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SECRETARY OF CALIFORNIA
DEPARTMENT OF CORRECTIONS AND
REHABILITATION; WARDEN OF SAN
QUENTIN STATE PRISON; L.
RICHARDSON; M. NUNLEY; J. BISHOP;
JOHN DOE,
Defendants.

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INTRODUCTION

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No. C 20-0879 WHA (PR)

Plaintiff,

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Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. For
the reasons discussed below, the Complaint is dismissed with leave to amend.
ANALYSIS
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners seek

redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §
1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims
which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the

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statement need only “‘give the defendant fair notice of what the . . . . claim is and the grounds

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upon which it rests.’”” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although

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in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's

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obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .
Factual allegations must be enough to raise a right to relief above the speculative level.” Bell

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United States District Court
Northern District of California

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must

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proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The United

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States Supreme Court has recently explained the “plausible on its face” standard of Twombly:

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“While legal conclusions can provide the framework of a complaint, they must be supported by

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factual allegations. When there are well-pleaded factual allegations, a court should assume their

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veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft

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v. Iqbal, 556 U.S. 662, 679 (2009).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged deprivation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988).

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B.

Legal Claims

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Plaintiff alleges that San Quentin State Prison had spiders because of unsanitary

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conditions. Some spiders bit him on the leg, and the bites became infected. He alleges that an

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unnamed doctor at San Quentin failed to detect the infection, and eventually he lost his lower leg

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to amputation. He alleges that he did not receive a prosthesis for the leg for over ten months.

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Plaintiff does not indicate which defendants, if any, were involved in these alleged

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incidents. "A plaintiff must allege facts, not simply conclusions, that show that an individual was
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personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193,

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1194 (9th Cir. 1998). Plaintiff must name the officials who violated his constitutional rights and

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allege facts that show that their actions or omissions caused these violations. He will be given

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leave to amend to do so.

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Plaintiff also alleges that defendants Richardson and Nunley, two Correctional Officers at
San Quentin, unlawfully confiscated his personal property, including some legal papers. He

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alleges that this property was eventually lost or destroyed. Neither the negligent nor intentional

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deprivation of property states a due process claim under § 1983 if the deprivation was random and

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unauthorized. See Parratt v. Taylor, 451 U.S. 527, 535-44 (1981); Hudson v. Palmer, 468 U.S.

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517, 533 (1984). The availability of an adequate state post-deprivation remedy, e.g., a state tort

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United States District Court
Northern District of California

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action, precludes relief because it provides sufficient procedural due process. See Zinermon v.

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

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remedy. See Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). Plaintiff’s claim that any

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defendants improperly destroyed his property does not implicate his right to due process because

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he has an adequate remedy under state law. Plaintiff’s allegations that he lost legal papers,

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moreover, also do not state a claim for the violation of his constitutional rights because he does

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not claim that the loss prevented him from pursuing a non-frivolous claim in court, an essential

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element of such an access-to-courts claim. See Lewis v. Casey, 518 U.S. 343, 351, 354-55 (1996).

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These claims are dismissed with leave to amend.

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Plaintiff further alleges that he was not interviewed in connection with an administrative

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appeal. This does not state a constitutional claim because there is no right to a constitutional right

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to an administrative appeal system in prison. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.

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2003). This claim is dismissed without leave to amend.

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Plaintiff also complains that he was transferred to Corcoran State Prison, where he did not

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have access to television or videos and where he was placed in Administrative Segregation.

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Prisoners have no constitutional right to incarceration in a particular institution. See Olim v.

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Wakinekona, 461 U.S. 238, 244-48 (1983). Accordingly, his transfer to Corcoran does not state a

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cognizable claim for relief. His claims about the conditions of his confinement in Administrative
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Segregation at Corcoran must be brought in the Eastern District of California, which is the proper

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venue for such claims. These claims are dismissed without leave to amend.

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Plaintiff complains that none of the defendants have taken a constitutionally adequate oath

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of office. Plaintiff also claims that he is not subject to various federal laws because he is a

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“citizen” of the State of California and not a “federal citizen.” Plaintiff has provided no valid

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authority in support of these claims. They are dismissed without leave to amend.
CONCLUSION

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1. The Complaint is DISMISSED with leave to amend in accordance with the standards set

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forth above. The amended complaint must be filed within twenty-eight (28) days of the date this

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order is filed and must include the caption and civil case number used in this Order and the words

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United States District Court
Northern District of California

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

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the original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik

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v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the

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original complaint by reference. Failure to amend within the designated time will result in the

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dismissal of this case.

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2. It is the 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,” and must comply with the court's orders in a timely fashion. Failure to do so

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may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil

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Procedure 41(b).

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IT IS SO ORDERED.

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Dated: November 17, 2021.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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