Body v. Phillips

Filing 5

ORDER DISMISSING CASE, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 1/4/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 1/4/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 MANUEL L. BODY, Plaintiff, 8 v. 9 ORDER OF DISMISSAL M PHILLIPS, et al., Defendants. 11 For the Northern District of California United States District Court 10 No. C 12-6145 PJH (PR) / 12 13 Plaintiff, an inmate at Salinas Valley State Prison, has filed a pro se civil rights 14 complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma 15 pauperis. 16 17 DISCUSSION A. 18 Standard of Review Federal courts must engage in a preliminary screening of cases in which prisoners 19 seek redress from a governmental entity or officer or employee of a governmental entity. 20 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 21 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may 22 be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 23 1915A(b)(1),(2). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 24 25 elements: (1) that a right secured by the Constitution or laws of the United States was 26 violated, and (2) that the alleged deprivation was committed by a person acting under the 27 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 28 /// 1 2 3 4 B. Legal Claims Plaintiff contends that the defendant correctional officer lost his flat-screen television when his property was stored. Neither the negligent nor intentional deprivation of property states a due process U.S. 527, 535-44 (1981) (state employee negligently lost prisoner's hobby kit), overruled in 7 part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Hudson v. 8 Palmer, 468 U.S. 517, 533 (1984) (intentional destruction of inmate's property). The 9 availability of an adequate state post-deprivation remedy, e.g. a state tort action, precludes 10 relief because it provides adequate procedural due process. King v. Massarweh, 782 F.2d 11 For the Northern District of California claim under § 1983 if the deprivation was random and unauthorized. Parratt v. Taylor, 451 6 United States District Court 5 825, 826 (9th Cir. 1986). California law provides an adequate post-deprivation remedy for 12 any property deprivations. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing 13 Cal. Gov't Code §§ 810-895). Nor is a prisoner protected by the Fourth Amendment 14 against the seizure, destruction or conversion of his property. Taylor v. Knapp, 871 F.2d 15 803, 806 (9th Cir. 1989). 16 Plaintiff's allegations involve a random and unauthorized deprivation of property not 17 cognizable under section 1983, so must be dismissed. Moreover, plaintiff has brought this 18 exact same claim on several other occasions: No. C 11-4702 PJH (PR), No. C 11-5734 19 PJH (PR) and No. C 12-2871 PJH (PR). In each case plaintiff was informed why his 20 complaint failed to state a claim and the cases were dismissed with prejudice. It is not 21 clear why plaintiff continues to file the same frivolous action. 22 CONCLUSION 23 For the reasons set out above, the complaint is DISMISSED with prejudice as 24 25 26 frivolous and for failure to state a claim The clerk shall close the file. IT IS SO ORDERED. Dated: January 4, 2013. PHYLLIS J. HAMILTON United States District Judge 27 28 G:\PRO-SE\PJH\CR.12\Body6145.dsm.wpd 2

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