Torres v. Cate et al

Filing 4

ORDER OF DISMISSAL. Signed by Judge Lucy H. Koh on 3/14/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 3/15/2013)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 MICHAEL P. TORRES, 11 Plaintiff, 12 v. 13 MATTHEW CATE, et al., 14 Defendants. 15 16 ) ) ) ) ) ) ) ) ) ) No. C 12-6236 LHK (PR) ORDER OF DISMISSAL Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint 17 pursuant to 42 U.S.C. § 1983 and Section 2 of the Sherman Antitrust Act. Plaintiff is granted 18 leave to proceed in forma pauperis in a separate order. For the reasons below, Plaintiff’s 19 complaint is DISMISSED. 20 21 22 DISCUSSION A. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner 23 seeks redress from a governmental entity or officer or employee of a governmental entity. See 24 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss 25 any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or 26 seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 27 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. 28 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). Order of Dismissal G:\PRO-SE\SJ.LHK\CR.12\Torres236dis.wpd 1 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 2 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 3 the alleged deprivation was committed by a person acting under the color of state law. West v. 4 Atkins, 487 U.S. 42, 48 (1988). 5 B. 6 Legal Claims Plaintiff claims that PBSP does not permit inmates to purchase eyeglasses or eyewear 7 from an outside vendor. All eyewear must be purchased through the Prison Industry Authority. 8 Plaintiff asserts that this prohibition violates his right to due process, and unfairly monopolizes 9 the market. 10 Section 2 of the Sherman Act provides that “[e]very person who shall monopolize, or 11 attempt to monopolize, or combine or conspire with any other person or persons, to monopolize 12 any part of the trade or commerce among the several States, or with foreign nations, shall be 13 deemed guilty of a felony.” 15 U.S.C. § 2. In 1943, the Supreme Court assumed that a raisin 14 marketing program adopted pursuant to California law “would violate the Sherman Act if it were 15 organized and made effective solely by virtue of a contract, combination or conspiracy of private 16 persons, individual or corporate,” but the Court found “nothing in the language of the Sherman 17 Act or in its history which suggests that its purpose was to restrain a state or its officers or agents 18 from activities directed by its legislature.” Parker v. Brown, 317 U.S. 341, 350-51 (1943) 19 (emphasis added). The Parker “state action” exemption extends to “a state executive branch, 20 when operating within its constitutional and statutory authority.” Deak-Perera Hawaii, Inc. v. 21 Department of Transportation, 745 F.2d 1281, 1283 (9th Cir. 1984). 22 The California Department of Corrections and Rehabilitation “[is] entitled to Parker 23 immunity for actions taken pursuant to their constitutional or statutory authority, regardless of 24 whether . . . particular actions or their anticompetitive effects were contemplated by the 25 legislature.” Charley’s Taxi Radio Dispatch Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 876 26 (9th Cir. 1987). Allegations that a state executive or a state agency misused its authority do not 27 nullify state-action immunity. Lancaster Community Hosp. v. Antelope Valley Hosp. Dist., 940 28 F.2d 397, 402 & n. 10 (9th Cir. 1991). Order of Dismissal G:\PRO-SE\SJ.LHK\CR.12\Torres236dis.wpd 2 1 Because actions taken by or at the direction or approval of state governmental bodies or 2 state executives are exempt from the antitrust laws set forth in the Sherman Act, Plaintiff’s claim 3 under the Sherman Act is legally frivolous and fails to state a claim upon which relief may be 4 granted. See, e.g., Equels v. California Dep’t of Corrections, No. CIV S-03-2589 FCD KJM P, 5 2005 WL 1366474 (E.D. Cal. May 12, 2005) (recommending dismissal of state prisoner’s 6 Sherman Act claim and rejecting the prisoner’s argument that the Department’s vendor package 7 regulation was improperly adopted as an emergency regulation); Taylor v. Ornoski, No. C 8 06-2224 MMC (PR), 2006 WL 1646148, at *1 (N.D. Cal. June 14, 2006) (dismissing state 9 prisoner’s claim that California prison officials violated the Sherman Act when they promulgated 10 11 regulations that restrict the vendors authorized to deliver packages to inmates). The Court has considered Plaintiff’s conclusory assertion that the Due Process Clause 12 contained in the Fourteenth Amendment gives him a right to make purchases from outside 13 vendors. The Due Process Clause protects persons against deprivations of life, liberty, and 14 property without due process of law. It does not guarantee prisoners a right to purchase property 15 from outside vendors, or to purchase property at all. 16 Although protected property interests may arise from state law, Plaintiff has cited no 17 California law that gives him a protected interest in making purchases from outside vendors. 18 California Penal Code § 2600 provides that state prisoners may be deprived of their civil rights 19 when reasonably related to legitimate penological interests. Among the civil rights listed in 20 Penal Code § 2601 as rights retained by prisoners, subject to the provisions of § 2600, is the right 21 to inherit, own, sell, or convey real or personal property. The right does not extend to possession 22 of any particular property in prison. Plaintiff’s due process claim is thus also legally frivolous, 23 and fails to state a claim upon which relief may be granted. 24 Although the Court normally allows a pro se prisoner to amend his complaint, the Court 25 need not do so where it appears beyond doubt that the plaintiff can prove no set of facts in 26 support of his claim which would entitle him to relief. Weilburg v. Shapiro, 488 F.3d 1202, 27 1205 (9th Cir. 2007). 28 Order of Dismissal G:\PRO-SE\SJ.LHK\CR.12\Torres236dis.wpd 3 1 CONCLUSION 2 This action is DISMISSED with prejudice for failure to state a claim. 3 IT IS SO ORDERED. 4 DATED: 3/14/13 LUCY H. KOH United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order of Dismissal G:\PRO-SE\SJ.LHK\CR.12\Torres236dis.wpd 4

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