Rickleffs v. Ward et al

Filing 5

ORDER DISMISSING CASE WITH LEAVE TO AMEND. Signed by Judge Hon. Lucy H. Koh on 3/23/2015. (sms, COURT STAFF) (Filed on 3/23/2015)

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FILED

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MMc !. 3 2015

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RICHARD W. WIEKJNG
CLERI< U.S. DISTRICT COUHT
NORTHERN DISTRICT OF CALifORNIA
SAN JOSE

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Plaintiff, a California state pretrial detainee proceeding prose, filed a civil rights
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complaint pursuant to 42 U.S.C. § 1983. Plaintiff is granted leave to proceed in forma pauperis
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in a separate order. For the reasons stated below, the court dismisses the complaint with leave to
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amend.
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DISCUSSION
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A.

Standard ofReview

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A federal court must conduct a preliminary screening in any case in which a prisoner
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seeks redress from a governmental entity or officer or employee of a governmental entity. See
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28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss
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any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or

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seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §

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1915A(b)(1), (2). Prose pleadings must, however, be liberally construed. See Balistreri v.
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Order of Dismissal with Leave to Amend
P:\PRO-SE\LHK\CR.14\Rickleffs 133dw Ia. wpd

Pacifica Police Dep 't, 901 F .2d 696, 699 (9th Cir. 1988).
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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

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

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

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B.

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Plaintiffs Claims
According to the complaint, on November 16, 2013, defendant Senior Deputy Ward

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conducted a search of plaintiffs cell and a full strip search of plaintiff. When plaintiff returned

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to his cell, plaintiff discovered that his belongings had been scattered all over the cell, and

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plaintiff was missing several confidential legal documents and personal items. Plaintiff also

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alleges that defendant then served plaintiff with an "RFD" form. A review of plaintiffs attached

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exhibits shows that RFD appears to stand for "Request for Discipline." Plaintiff states that

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defendant violated the jail polices by conducting the hearing by himself, and also violated

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plaintiffs right to due process and a fair hearing.

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As currently pled, plaintiffs complaint fails to state a claim for relief.

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To the extent plaintiff is attempting to raise a due process claim regarding plaintiffs

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missing property, the facts alleged do not support such a claim. Ordinarily, due process of law

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requires notice and an opportunity for some kind of hearing prior to the deprivation of a

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significant property interest. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19

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( 1978). However, the intentional or negligent deprivation of property does not state a due

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process claim under Section 1983 ifthe deprivation was unauthorized, and a meaningful post-

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deprivation remedy is available. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) ("we hold that

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an unauthorized intentional deprivation of property by a state employee does not constitute a

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violation of the procedural requirements ofthe Due Process Clause ofthe Fourteenth

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Amendment if a meaningful postdeprivation remedy for the loss is available"). This is because

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"[t]he state can [not] anticipate and control in advance the random and unauthorized intentional

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conduct of its employees," making pre-deprivation procedures impracticable. Id. Here, the

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availability of an adequate state post-deprivation remedy, e.g., a state tort action, precludes relief
Order of Dismissal with Leave to Amend
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because it provides sufficient procedural due process. See Zinermon v. Burch, 494 U.S. 113, 128
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(1990) (where state cannot foresee deprivation, a statutory provision for post-deprivation hearing

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or common law tort remedy for erroneous deprivation satisfies due process). California state tort

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law provides such an adequate post-deprivation remedy. See Barnett v. Centoni, 31 F.3d 813,

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816-17 (9th Cir. 1994) (citing Cal. Gov't Code §§ 81 0-895). Thus, to the extent plaintiff is

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asserting a due process claim with respect to his missing or damaged property, it is DISMISSED

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with prejudice.

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With respect to plaintiffs procedural due process claim concerning his RFD violations,

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plaintiff fails to demonstrate that he was deprived of a liberty interest. Deprivations that are

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authorized by state law and are less severe or more closely related to the expected terms of

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confinement may also amount to deprivations of a procedurally protected liberty interest,

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provided that ( 1) state statutes or regulations narrowly restrict the power of prison officials to

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impose the deprivation, i.e., give the inmate a kind of right to avoid it, and (2) the liberty in

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question is one of"real substance." See Sandin v. Conner, 515 U.S. 472, 477-87(1995).

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Generally, "real substance" will be limited to freedom from (1) a restraint that imposes "atypical

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and significant hardship on the inmate in relation to the ordinary incidents of prison life," id. at

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484, or (2) state action that "will inevitably affect the duration of [a] sentence," id. at 487. Such

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a hardship exists when conditions of confinement do not mirror those in other housing units, but

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rather "works a major disruption" in the prisoner's environment. !d. at 486-87. Ordinarily,

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placement in disciplinary segregation works no such disruption. !d. at 486.

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Here, plaintiffs attached exhibits show that plaintiff was found guilty oftwo violations,

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which resulted in temporary losses of commissary, losses of visits, disciplinary isolations, and a

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loss of recreation. (Compl. at 11, 13.) As currently pled, the court cannot determine whether,

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liberally construed, plaintiff has suffered from an atypical and significant hardship as a result of

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the punishments imposed.

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Moreover, even assuming that plaintiff can demonstrate a deprivation of his liberty

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interest, it is unclear what procedural protections plaintiff did not receive. Under the Due

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Process Clause, a prisoner is entitled to certain procedural protections when he is charged with a
Order of Dismissal with Leave to Amend
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disciplinary violation. Wolffv. McDonnell, 418 U.S. 539, 564-71 (1974). These protections
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include a written notice at least twenty-four hours before the disciplinary hearing, an opportunity

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to call witnesses and present documentary evidence, and a written statement by the fact-finder as

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to the evidence relied upon and the reasons for the disciplinary action taken. !d. Here, plaintiff

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does not allege that he was denied notice of the charges against him, or the opportunity to call

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witnesses and present evidence at the trial. As such, the court finds that plaintiff fails to state a

7 . Fourteenth Amendment due process claim as it relates to the punishments imposed upon him for
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the RFD violations.
Plaintiff is granted leave to amend his complaint to cure the deficiencies described above

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ifhe can do so in good faith. Specifically, plaintiff must allege facts which show that the

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punishments imposed subjected him to an atypical and significant hardship in relation to the

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ordinary incidents of prison life. Plaintiff must further allege facts specifying what procedural

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protections he was denied.

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CONCLUSION

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For the foregoing reasons, the court hereby orders as follows:

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1.

Plaintiffs complaint is DISMISSED with leave to amend.

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2.

If plaintiff can cure the pleading deficiencies described above, he shall file an

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AMENDED COMPLAINT within thirty days from the date this order is filed. The amended

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complaint must include the caption and civil case number used in this order (C 14-5133 LHK

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(PR)) and the words AMENDED COMPLAINT on the first page. The amended complaint must

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indicate which specific, named defendant(s) was involved in each cause of action, what each

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defendant did, what effect this had on plaintiff and what right plaintiff alleges was violated.

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Plaintiff may not incorporate material from the prior complaint by reference. If plaintiff files an

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amended complaint, he must allege, in good faith, facts - not merely conclusions of law - that

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demonstrate that he is entitled to relief under the applicable federal statutes. Failure to file an

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amended complaint within thirty days and in accordance with this order will result in a

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finding that further leave to amend would be futile, and this action will be dismissed.

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3.

Plaintiff is advised that an amended complaint supersedes the original complaint.

Order of Dismissal with Leave to Amend
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"[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged

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in the amended complaint." London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Defendants not named in an amended complaint are no longer defendants. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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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 "Notice

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of Change of Address," and must comply with the court's orders in a timely fashion. Failure to

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

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of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

3}2.3/201r
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United States District Judge

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Order of Dismissal with Leave to Amend
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