Villa v. Cate et al

Filing 12

ORDER DISMISSING CASE. Pla's Complaint is dismissed w/o prejudice for failing to state a claim upon which relief may be granted pursuant to 28 USC 1915(e)(2)(B) and 1915A(b). Pla is granted 45 days leave from the date this Order is filed to file a First Amended Amended Complaint. Dfts not name and all claims not re-alleged in the Amended Complaint will be considered waived. Pla is cautioned that should he elect not to amend, or if Amended Complaint still fails to state a claim upon which re lief may be granted, dismissal of this action may be counted as a "strike" against him pursuant to 28 USC 1915(g). Signed by Judge Irma E. Gonzalez on 12/1/2011. (Blank First Amended Complaint Form t/w copy of this Order mailed to Plaintiff) (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT VILLA,
CDCR #J-21973,
Plaintiff,

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Civil No.

vs.
MATTHEW CATE; W.J. SULLIVAN;
MIKE POULOS; DOMINGO URIBE, JR.;
F. GONZALEZ; D. PARAMO; A. FAVILA;
D.J. DeGUES; P. GALEANA; C. WELCH;
JAMES S. HILL; S. SANDOVAL; J.
BURGOS; J.J. NAPOLITANO; T.
STEADMAN; D. VAN LEER; M.
HODGES; D. FOSTON; STEVEN
EPPERSON; JAMES MORENO; GARY
HOPPER; MARIO MACLUENO; R.
TOVAR; DEAVONNE LONG; J. HIRAL;
DOES 1-20,

11cv2426 IEG (JMA)

ORDER DISMISSING COMPLAINT
FOR FAILING TO STATE A CLAIM
PURSUANT TO
28 U.S.C. § 1915(e)(2)(B) & 1915A(b)

Defendants.

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I.

Procedural History

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On May 31, 2011, Plaintiff, a state inmate currently incarcerated at the California

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Correctional Institution located in Tehachapi, California, and proceeding pro se, filed a civil

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rights Complaint pursuant to 42 U.S.C. § 1983 in the Eastern District of California. Plaintiff did

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not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he filed a Motion to

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Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).
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11cv2426 IEG (JMA)

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Plaintiff’s Motion to Proceed IFP was granted by Magistrate Judge Sheila Oberto on July

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12, 2011. On October 17, 2011, Magistrate Judge Oberto conducted a sua sponte screening of

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Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A and dismissed all the claims against

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Defendants Steadman and Gonzalez for failing to state a claim upon which relief could be

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granted. See Oct. 17, 2011 Order at 2-3. Magistrate Judge Oberto then found that as for the

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remaining claims in Plaintiff’s Complaint, venue was proper in the Southern District of

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California and transferred the matter to this Court on October 17, 2011. Id. at 4.

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II.

SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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The Prison Litigation Reform Act’s (“PLRA”) amendments to 28 U.S.C. § 1915 obligate

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the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff,

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who are “incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated

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delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial

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release, or diversionary program,” “as soon as practicable after docketing.” See 28 U.S.C. §§

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1915(e)(2)(B) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any

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prisoner civil action and all other IFP complaints, or any portions thereof, which are frivolous,

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malicious, fail to state a claim, or which seek damages from defendants who are immune. See

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28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)

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(en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir. 2000) (§ 1915A).

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Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte

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dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. However, 28

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U.S.C. § 1915(e)(2) and § 1915A now mandate that the court reviewing an IFP or prisoner’s suit

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make and rule on its own motion to dismiss before directing that the Complaint be served by the

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U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 (“[S]ection 1915(e) not only permits,

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but requires a district court to dismiss an in forma pauperis complaint that fails to state a

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claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing

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§ 1915A).

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11cv2426 IEG (JMA)

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“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to the

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plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2)

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“parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). Here, however, even

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presuming Plaintiff’s allegations true, the Court finds his Complaint fails to state a claim upon

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which relief can be granted. See 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b); Lopez, 203 F.3d at

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1126-27; Resnick, 213 F.3d at 446, n.1.

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A.

42 U.S.C. § 1983

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To state a claim under § 1983, Plaintiff must allege that: (1) the conduct he complains

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of was committed by a person acting under color of state law; and (2) that conduct violated a

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right secured by the Constitution and laws of the United States. Humphries v. County of Los

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Angeles, 554 F.3d 1170, 1184 (9th Cir. 2009) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).

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B.

Property Claims

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Plaintiff claims that prison officials have unlawfully confiscated and destroyed his

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personal property. (See Compl. at 24.) Where a prisoner alleges the deprivation of a liberty or

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property interest caused by the unauthorized negligent or intentional action of a prison official,

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the prisoner cannot state a constitutional claim where the state provides an adequate post-

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deprivation remedy. See Zinermon v. Burch, 494 U.S. 113, 129-32 (1990); Hudson v. Palmer,

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468 U.S. 517, 533 (1984). The California Tort Claims Act (“CTCA”) provides an adequate post-

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deprivation state remedy for the random and unauthorized taking of property. Barnett v.

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Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). Thus, Plaintiff has an adequate state post-

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deprivation remedy and his claims relating to the taking of his property are not cognizable in this

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§ 1983 action, and must be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1).

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C.

Respondeat Superior

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Plaintiff also seeks to hold a number of Defendants liable for alleged constitutional

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violations of the grounds of “negligently failing to provide supervision.” (Compl. at 23.)

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However, there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson,

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9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, “[t]he inquiry into causation must be
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11cv2426 IEG (JMA)

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individualized and focus on the duties and responsibilities of each individual defendant whose

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acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844

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F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order

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to avoid the respondeat superior bar, Plaintiff must allege personal acts by each individual

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Defendant which have a direct causal connection to the constitutional violation at issue. See

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Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th

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Cir. 1989).

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Supervisory officials may only be held liable for the allegedly unconstitutional violations

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of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what extent they

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personally participated in or directed a subordinate’s actions, and (2) in either acting or failing

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to act, they were an actual and proximate cause of the deprivation of Plaintiff’s constitutional

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rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, however,

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Plaintiff’s Complaint fails to set forth facts which might be liberally construed to support an

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individualized constitutional claim against any of the named supervisory defendants.

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D.

Conspiracy claims

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Plaintiff also alleges that several correctional officers acted in a conspiracy to violate his

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constitutional rights pursuant to 42 U.S.C. § 1985(3). (See Compl. at 24.) “To state a cause of

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action under § 1985(3), a complaint must allege (1) a conspiracy, (2) to deprive any person or

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a class of persons the equal protection of the laws, or of equal privileges and immunities under

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the laws, (3) an act by one of the conspirators in furtherance of the conspiracy, and (4) a personal

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injury, property damage or a deprivation of any right or privilege of a citizen of the United

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States.”

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Breckenridge, 403 U.S. 88, 102-03 (1971); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th

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Cir. 1992). “[T]he language requiring intent to deprive equal protection . . . means that there

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must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind

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the conspirators’ action.” Griffin, 403 U.S. at 102; see also Sever, 978 F.2d at 1536.

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Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980); see also Griffin v.

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11cv2426 IEG (JMA)

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Here, Plaintiff fails to allege membership in a protected class and fails to allege that any

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Defendant acted with class-based animus, both of which are essential elements of a cause of

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action under 42 U.S.C. § 1985(3). See Griffin, 403 U.S. at 101-02; Schultz v. Sundberg, 759

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F.2d 714, 718 (9th Cir. 1985) (holding that conspiracy plaintiff must show membership in a

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judicially-designated suspect or quasi-suspect class); Portman v. County of Santa Clara, 995

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F.2d 898, 909 (9th Cir. 1993).

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Accordingly, the Court must DISMISS Plaintiff’s Complaint for all the reasons set forth

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above but will provide Plaintiff with the opportunity to amend his Complaint to correct the

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deficiencies of pleading identified by the Court.

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III.

CONCLUSION AND ORDER

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Good cause appearing therefor, IT IS HEREBY ORDERED that:

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Plaintiff’s Complaint is DISMISSED without prejudice for failing to state a claim

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upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b).

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However, Plaintiff is further GRANTED forty five (45) days leave from the date this Order is

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filed in which to file a First Amended Complaint which cures all the deficiencies of pleading

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noted above. Plaintiff’s Amended Complaint must be complete in itself without reference to his

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previous pleading. See S.D. CAL. CIVLR 15.1. Defendants not named and all claims not re-

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alleged in the Amended Complaint will be considered waived. See King v. Atiyeh, 814 F.2d 565,

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567 (9th Cir. 1987).

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Further, Plaintiff is cautioned that should he elect not to amend, or if his Amended

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Complaint still fails to state a claim upon which relief may be granted, the dismissal of this

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action may hereafter be counted as a “strike” against him pursuant to 28 U.S.C. § 1915(g). See

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McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).

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2.

The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff.

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DATED: December 1, 2011

___________________________________
IRMA E. GONZALEZ, Chief Judge
United States District Court

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