Rodriguez v. Correctional Training Facility (Soledad)

Filing 8

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Phyllis J. Hamilton on 11/16/12. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 11/16/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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JOSE ANTONIO RODRIGUEZ,
Plaintiff,

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vs.

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

CORRECTIONAL TRAINING
FACILITY SOLEDAD,

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For the Northern District of California

United States District Court

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No. C 12-5228 PJH (PR)

Defendant.
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Plaintiff, a former state prisoner at the Correctional Training Facility Soledad, has
filed a pro se civil rights complaint under 42 U.S.C. § 1983.

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DISCUSSION
A.

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

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

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

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dismiss any claims which 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. Id. at

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

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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of

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

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the statement need only '"give the defendant fair notice of what the . . . . claim is and the

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grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations

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omitted). Although in order to state a claim a complaint “does not need detailed factual

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allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief'

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requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief

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above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

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(citations omitted). A complaint must proffer "enough facts to state a claim to relief that is

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plausible on its face." Id. at 570. The United States Supreme Court has recently explained

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the “plausible on its face” standard of Twombly: “While legal conclusions can provide the

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framework of a complaint, they must be supported by factual allegations. When there are

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well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct.

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For the Northern District of California

United States District Court

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1937, 1950 (2009).

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

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff alleges that he was released from prison but has not received all of his

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property and states that it has been stolen. Plaintiff identifies no specific individuals and

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the only named defendant is the prison itself.

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However, neither the negligent nor intentional deprivation of property states a due

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process claim under § 1983 if the deprivation was random and unauthorized. Parratt v.

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Taylor, 451 U.S. 527, 535-44 (1981) (state employee negligently lost prisoner's hobby kit),

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overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986);

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Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional destruction of inmate's property).

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

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precludes relief because it provides adequate procedural due process. King v. Massarweh,

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782 F.2d 825, 826 (9th Cir. 1986). California law provides an adequate post-deprivation

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remedy for any property deprivations. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir.
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1994) (citing Cal. Gov't Code §§ 810-895). Nor is a prisoner protected by the Fourth

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Amendment against the seizure, destruction or conversion of his property. Taylor v.

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Knapp, 871 F.2d 803, 806 (9th Cir. 1989).

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The complaint is dismissed with leave to amend. Plaintiff must also identify the

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specific defendants responsible to state a claim under 42 U.S.C. § 1983. Plaintiff will also

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be provided an application for a non-prisoner to proceed in forma pauperis. Failure to file

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an amended complaint or provide a completed application to proceed in forma pauperis will

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result in the dismissal of these claims.

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1. The complaint is DISMISSED with leave to amend, within twenty-eight days from

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For the Northern District of California

United States District Court

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CONCLUSION

the date of this order. The amended complaint must include the caption and civil case

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number used in this order and the words AMENDED COMPLAINT on the first page.

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Because an amended complaint completely replaces the original complaint, plaintiff must

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include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258,

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1262 (9th Cir. 1992). He may not incorporate material from the original complaint by

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reference. Failure to amend within the designated time will result in the dismissal of these

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claims.

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2. An application to proceed in forma pauperis will be provided to plaintiff and must
be completed and returned to the court within twenty-eight days from the date of this order.
3. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the

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

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“Notice of Change of Address,” and must comply with the court's orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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Dated: November 16, 2012.
PHYLLIS J. HAMILTON
United States District Judge

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