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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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MANUEL L. BODY,
Plaintiff,

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v.

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ORDER OF DISMISSAL

M PHILLIPS, et al.,
Defendants.

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For the Northern District of California

United States District Court

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No. C 12-6145 PJH (PR)

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Plaintiff, an inmate at Salinas Valley State Prison, has filed a pro se civil rights

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complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma

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pauperis.

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DISCUSSION
A.

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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).
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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///

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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

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

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Palmer, 468 U.S. 517, 533 (1984) (intentional destruction of inmate's property). 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 adequate procedural due process. King v. Massarweh, 782 F.2d

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For the Northern District of California

claim under § 1983 if the deprivation was random and unauthorized. Parratt v. Taylor, 451

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United States District Court

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825, 826 (9th Cir. 1986). California law provides an adequate post-deprivation remedy for

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any property deprivations. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing

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Cal. Gov't Code §§ 810-895). Nor is a prisoner protected by the Fourth Amendment

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against the seizure, destruction or conversion of his property. Taylor v. Knapp, 871 F.2d

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803, 806 (9th Cir. 1989).

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Plaintiff's allegations involve a random and unauthorized deprivation of property not

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cognizable under section 1983, so must be dismissed. Moreover, plaintiff has brought this

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exact same claim on several other occasions: No. C 11-4702 PJH (PR), No. C 11-5734

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PJH (PR) and No. C 12-2871 PJH (PR). In each case plaintiff was informed why his

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complaint failed to state a claim and the cases were dismissed with prejudice. It is not

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clear why plaintiff continues to file the same frivolous action.

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CONCLUSION

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For the reasons set out above, the complaint is DISMISSED with prejudice as

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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

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G:\PRO-SE\PJH\CR.12\Body6145.dsm.wpd

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