Nible v. Fink et al

Filing 6

REPORT AND RECOMMENDATION re 2 MOTION to Dismiss for Failure to State a Claim filed by R. Olivarria, Fink, T. Diaz, V. Sosa, B. Self. Court recommends that Defendants' motion to dismiss be granted. Objections to R&R due by 5/23/2017. Replies due by 6/6/2017. Signed by Magistrate Judge Peter C. Lewis on 5/9/2017. (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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WILLIAM NIBLE,

Case No.: 16cv2849-BAS (PCL)
Plaintiff,

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v.

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REPORT AND RECOMMENDTION
GRANTING DEFENDANT'S
MOTION TO DISMISS
[Doc. 2]

FINK, et al.,
Defendant.

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I. INTRODUCTION

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Plaintiff William Nible (“Plaintiff”), a state prisoner, has filed a civil rights

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complaint alleging both federal and state law claims arising from his incarceration at the

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Richard J. Donovan Correctional Facility in San Diego. (Doc. 1.) Presently before this

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Court is Defendant’s Motion to Dismiss the Complaint. (Doc. 2.)

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The Honorable Cynthia Bashant has referred the matter to the undersigned Judge for

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Report and Recommendation pursuant to 29 U.S.C. § 63(b)(1)(B) and Local Civil Rule

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72.1(c)(1)(d). After a thorough review of the pleadings and supporting documents, this

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Court recommends the Motion to Dismiss be GRANTED.
II. FACTUAL ALLEGATIONS

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This statement of facts is based entirely upon the allegations in Plaintiff’s Complaint.
(Doc. 1.)
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16cv2849-BAS (PCL)

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Plaintiff is an inmate currently housed at the Sierra Conservation Center. (Doc. 1 at

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5.) Plaintiff alleges that on July 13, 2015, while incarcerated at R.J. Donovan Correctional

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Facility, Plaintiff purchased approved religious artifacts, runes, which were confiscated by

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prison guard Defendant Fink. (Doc. 1 at 10-11.) Plaintiff contends that Defendant Fink told

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Plaintiff he was only allowed to possess five stones and that they must be made of either

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tile, wood, or plastic. (Doc. 1 at 11.) According to the Complaint, Plaintiff’s rune purchase

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was within the matrix of allowable property and Defendant Fink unreasonably told Plaintiff

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that his runes were not permitted. (Id.)

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Piecing together the allegations scattered throughout the Complaint, one or more of

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the Defendants improperly returned some, but not all of the runes to the vendor. (Doc. 1 at

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11-13, 24.) Plaintiff alleges that under fear of retaliation, he surrendered his runes to

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Defendant Fink, who then misappropriated state funds to return the runes to the vendor by

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a method other than that prescribed by law. (Id. at 12-13.) The Compliant is silent as to

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how the runes’ return ran afoul of the law.

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While the Complaint does not include any prison grievance documentation or

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specific reference to Plaintiff’s administrative remedies, causes of action 5 through 14

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allude to various defendants denying Plaintiff “his right to petition for redress of a

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grievance” on August 18, 2015, September 12, 2015, November 5, 2015, February 2, 2016,

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and April 6, 2016. (Doc. 1 at 17-25.)

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Plaintiff sued in San Diego County Superior Court on August 3, 2016 and
Defendants removed the case to federal court on November 21, 2016.
III. STANDARD OF REVIEW

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Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a Plaintiff’s

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claims. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

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Because Rule 12 focuses on the sufficiency of a claim rather than the claim’s substantive

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merits, “a court may [ordinarily] look only at the face of the complaint to decide a motion

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to dismiss.” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002).

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A motion to dismiss should be granted if a plaintiff fails to proffer “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 570 (2007). In order to overcome a motion to dismiss request, a complaint must

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contain sufficient factual matter such that it states a claim to relief that is plausible on its

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face. Id. at 548. “A claim has facial plausibility when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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“All allegations of material fact are taken as true and construed in the light most

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favorable to the nonmoving party.” Cahil v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th

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Cir. 1996). The court is not required to accept legal conclusions in the form of factual

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allegations if the conclusions detailed cannot be reasonably drawn from the facts put forth.

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Clegg v. Cult Awareness Network, 18 F.3d 752, 755 (9th Cir. 1994); see also Papasan v.

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Allain, 478 U.S. 265, 286 (1986) (on motion to dismiss, court is “not bound to accept as

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true a legal conclusion couched as a factual allegation.” “[T]he pleading standard Rule 8

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does not require ‘detailed factual allegations.’ But it demands more than an unadorned, the

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defendant-unlawfully-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly,

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550 U.S. at 55).

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Well-pleaded factual allegations give rise to a court’s assumption of their accuracy,

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allowing the court to then determine whether they can plausibly allow for an entitlement

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to relief. Id. at 679. The plausibility standard does not correspond to the probability

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requirement, but requires more than a “sheer possibility that a defendant has acted

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unlawfully.” Id. at 678. “Where a complaint pleads facts that are ‘merely consistent with’

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a defendant’s liability, it stops short of the line between possibility and plausibility of

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‘entitlement to relief.’” Id.

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Ultimately, in order for a complaint to withstand a motion to dismiss, the non-

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conclusory factual content, and inferences drawn from that content, must make a plausible

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claim entitling the plaintiff to relief plausible. Moss v. United States Secret Serv., 572 F.3d

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962, 969 (9th Cir. 2009).
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IV. DISCUSSION
A. Cause of Action #1
1. Failure to State § 1983 Claim Against Defendant Fink

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Plaintiff’s first cause of action alleges that Defendant Fink’s refusal to allow Plaintiff

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his religious artifacts violates Plaintiff’s federal rights under § 1983. (Doc. 1 at 10.)

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Defendants argue that despite the less stringent pleading standards for pro se litigants,

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Plaintiff’s claim lacks essential elements, and that adequate and meaningful post-

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deprivation remedies for Plaintiff’s losses are available. (Doc. 2-1 at 3.)

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Prisoners have a protected interest in their personal property under the Due Process

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Clause. Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Hansen v. May, 502 F.2d 728, 730

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(9th Cir. 1974). An authorized, intentional deprivation of property is actionable under the

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Due Process Clause. See Hudson v. Palmer, 468 U.S. 517, 532 n.13 (1984) (citing Logan

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v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982)). Neither negligent nor

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unauthorized intentional deprivations of property give rise to a violation of the Due Process

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Clause if the state provides an adequate post-deprivation remedy. Hudson, 468 U.S. at 533

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n.14. “In other words, only an authorized intentional deprivation of property is actionable

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under the Due Process Clause. Authorized deprivations of property are permissible if

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carried out pursuant to a regulation that is reasonably related to a legitimate penological

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interest.” Haraszewski v. Knipp, No. 2:13-cv-2494 DB P, 2016 WL 6766750, at *3 (E.D.

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Cal. Nov. 14, 2016).

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Plaintiff vaguely alleges that Defendant Fink illegally “refused to allow Plaintiff his

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religious artifacts.” (Doc. 1 at 10.) “Plaintiff's allegations of wrongful, retaliatory

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confiscation of his personal property does not support a claim. Unauthorized, bad-faith

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behavior does not support a federal due process claim” if a meaningful postdeprivation

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remedy is available for the loss. Chick v. Lacey, No. 1:11-cv-01447-GBC (PC), 2012 WL

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3912796, at *5 (E.D. Cal. Sept. 7, 2012) (citing Hudson, 468 U.S. at 533); Hudson, 468

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U.S. at 533. The Ninth Circuit has held that “California Law provides an adequate post-

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deprivation remedy for any property deprivations.” Barnett v. Centoni, 31 F.3d 813, 8164
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17 (9th Cir. 1994); see also Cal. Gov't Code §§ 810-895. “It is immaterial whether or not

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Plaintiff succeeds in redressing his loss through the available state remedies; it is the

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existence of these alternate remedies that bars him from pursuing a § 1983 procedural due

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process claim.” Hutchison v. Marshall, No. CV 09-04540-ABC (VBK), 2011 WL 862118,

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at *9 (C.D. Cal. Feb. 3, 2011) (citing Willoughby v. Luster, 717 F. Supp. 1439, 1443 (D.

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Nev. 1989)).

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Accordingly, the Court RECOMMENDS that Defendants’ motion to dismiss
Plaintiff’s first cause of action under § 1983 be GRANTED.
2. Failure to State State-Law Claim Against Defendant Fink

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Plaintiff claims that Defendant Fink violated “California Penal Code § 422.6;

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Government Code § 1222; … California Department of Corrections operations Manual §

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33030.9 subsections B, C, D, F, M, O, and T; … [and] California Code of Regulations §

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3137(a).” (Doc. 1 at 10.) Defendant argues that Plaintiff’s assertions fail to state a

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recognized legal claim and that there are no private right of actions afforded to enforce the

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relevant sections of California law Plaintiff cites. (Doc. 2-1 at 4.)

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The Supreme Court “has rarely implied a private right of action under a criminal

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statute, and where it has done so ‘there was at least a statutory basis for inferring that a

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civil cause of some sort lay in favor of someone.’” Chrysler Corp. v. Brown, 441 U.S. 281,

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316 (1979) (quoting Cort. v. Ash, 422 U.S. 66, 79 (1975)). Further, “Plaintiff may not seek

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to impose liability on Defendants for violation of an operational procedure at [a] prison.”

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Tilei v. Wan, No. 1:06-CV-00776OWWGSAP, 2008 WL 1924999, at *2 (E.D. Cal. Apr.

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29, 2008). Additionally, there is no implied private right of action under the Title 15

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regulations governing the conduct of prison employees. (Id.)

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This Court has found no authority to support Plaintiff’s claims under a private right

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of action with respect to California’s Penal Code or other sections cited by Plaintiff. As

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discussed above, there exists a post-deprivation remedy available to Plaintiff and as such

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Plaintiff may not seek to create private rights of action where none exist.

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Accordingly, the Court RECOMMENDS that Defendants’ motion to dismiss
Plaintiff’s first cause of action’s state law claims be GRANTED.

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B. Causes of Action #2 and #3

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Plaintiff’s second and third causes of action allege that Defendant Fink committed

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fraud under state law by misstating or misunderstanding the prison rules regarding

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possession of personal property and the rules regarding returning prisoner property to a

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vendor. (Doc. 1 at 11-14.) Defendant argues that as the fraud claims have not been plead

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with particularity, they must be dismissed. (Doc. 2-1 at 5-6.)

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Fraud actions are subject to strict pleading requirements. Comm. On Children's

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Television, Inc. v. Gen. Foods Corp., 35 Cal. 3d 197, 216, (1983). As such, every element

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of a fraud cause of action must be properly alleged and “the policy of liberal construction

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of the pleadings… will not ordinarily be invoked to sustain a pleading defective in any

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material respect.” Id. In California, the elements that must be alleged both factually and

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specifically are (1) misrepresentation of a material fact, (2) knowledge of falsity or lack of

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reasonable ground for belief in the truth of the representation, (3) intent to induce reliance,

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(4) actual and justifiable reliance, and (5) resulting damage. Matthew Bender, California

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Torts § 40.02 (2016).

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Here, Plaintiff’s form complaint does not sufficiently state a fraud cause of action.

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The crux of Plaintiff’s fraud claims is that Defendant Fink defrauded Plaintiff when Fink

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told Plaintiff the runes were not approved and then further defrauded Plaintiff when Fink

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returned the runes to the vendor. Both of these causes of action are missing key elements.

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Most notably, Plaintiff’s second cause of action states Defendant Fink demonstrated

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intention to defraud Plaintiff when Fink entered into an employment contract with the state

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without “intention of compliance with mandated duties.” (Doc. 1 at 12.) Additionally,

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Plaintiff’s second cause of action lacks any statement to support knowledge of falsity and

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his third cause of action fails to plead both intent and reliance. Plaintiff cursorily asserts

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that while his runes were of the proper size, material, and number, Defendant Fink

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mistakenly and incorrectly applied the matrix of allowable religious materials. This may
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indicate a mistake or a miscommunication regarding the matrix, but as Plaintiff has

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presented the facts, they do not rise to well-pleaded fraud causes of action.
Accordingly, the Court RECOMMENDS Defendants’ motion to dismiss the second

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and third cause of action be GRANTED.

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C. Causes of Action #4-12

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Plaintiff alleges that Defendants Diaz, Self, Sosa, and Olivarra illegally appropriated

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funds, made false or misleading statements, refused and failed to perform duties, aided and

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abetted a hate crime, and denied Plaintiff his right to petition for redress of a grievance.

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(Doc. 1 at 15-23.) Defendants argue that as Plaintiff has alleged no specific facts or

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personal participation by each of these Defendants, and as there is no liability for

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participating in the appeals process, the causes of action against these Defendants must be

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dismissed. (Doc. 2-1 at 6-7.)

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Liability under § 1983 arises only upon a showing of personal participation by the

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defendant. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Within the context of §

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1983, a person subjects another to the deprivation of a constitutional right only “if he does

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an affirmative act, participates in another’s affirmative act, or omits to perform an act which

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he is legally required to do that causes the deprivation of which complaint is made.”

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Preschooler II v. Clark Cty. Sch. Bd. Of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). The requisite deprivation must arise

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from an affirmative act, participation in another’s affirmative acts, or the failure to perform

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an act that is legally required. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). “[A]

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plaintiff must plead that each Government-official defendant, through the official’s own

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individual actions, has violated the Constitution.” Ashcroft, 556 U.S. at 676 (2009)

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Sweeping conclusory allegations are insufficient to establish liability. Leer, 844 F.2d at

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633.

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Whether Defendants refused to process Plaintiff’s grievances, lost them, denied

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them, or required a specific procedure to exhaust them, is an insufficient basis on which to

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state a claim. See e.g., Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that
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a prisoner has no constitutional right to an effective grievance or appeal procedure). Ruling

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against a prisoner on an administrative appeal does not play a role in contributing to the

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underlying violation. Baker v. Doe, No. 16-00140 JMS/RLP, 2016 U.S. Dist. LEXIS

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53846, at *13 (D. Haw. Apr. 13, 2016). A person must have participated in or caused a

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civil rights violation in order to be held responsible for that violation. Id. A violation cannot

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be contributed to by a ruling against a prisoner on an administrative complaint. Id.

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Here, Plaintiff’s causes of action against these defendants contain no factual basis.

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Instead, Plaintiff simply asserts that these individuals made false statements, refused or

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failed to perform duties, aided and abetted a hate crime, and denied Plaintiff his right to a

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grievance process. What these statements, duties, or hate crime(s) were are not indicated.

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As each of these causes of action are nearly identical, Plaintiff has alleged no personal or

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individual participation attributable to Defendants Diaz, Self, Sosa, or Olivarra. Similarly,

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there are no facts or details that would elucidate the steps Plaintiff took to address his

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grievance. Further, Plaintiff does not indicate how any of these Defendant’s actions were,

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as he alleges, wilful, wanton, malicious, or oppressive. The entirety of the basis for liability

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alleged in causes of action 4 through 12 are vague, overbroad, and without any detail that

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would satisfy pleading requirements, even when construed liberally in Plaintiff’s favor.

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As a result of the aforementioned reasons, the Court RECOMMENDS Defendant’s
motion to dismiss regarding these claims should be GRANTED.

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D. Causes of Action #13 and #14

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Defendant alleges in cause of action #13 that Defendant Doe #1, a prison staff

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member, made false and misleading statements, failed to perform a duty, aided and abetted

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a hate crime, and created a false record. (Doc. 1 at 24.) Further, Defendant’s 14th cause of

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action alleges that Defendant Doe #2, as a “hiring authority, warden, or designee,” denied

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Plaintiff his right to petition for redress of a grievance, made false statements, and aided

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and abetted a hate crime. (Doc. 1 at 25.) Defendants do not address the allegations against

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either Doe Defendant, however, as these claims are similar or identical to those against

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named defendants, similar analysis applies to determine the sufficiency of Plaintiff’s

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claims.

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A supervisor is only liable for the constitutional violations of ... subordinates if the

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supervisor participated in or directed the violations, or knew of the violations and failed to

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act to prevent them. There is no respondeat superior liability under [§] 1983.” Taylor, 880

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F.2d at 1045 (citations omitted); see also Ashcroft, 556 U.S. at 676 (“Because vicarious

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liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each

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Government-official defendant, through the official's own individual actions, has violated

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the Constitution.”) “For an official to be liable for another actor's depriving a third party of

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his constitutional rights, that official must have at least the same level of intent as would

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be required if the official were directly to deprive the third party of his constitutional

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rights.” Lacey, 693 F.3d at 916. “[A] plaintiff may state a claim against a supervisor for

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deliberate indifference based upon the supervisor's knowledge of and acquiescence in

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unconstitutional conduct by his or her subordinates.” Starr, 652 F.3d at 1206-07. In such

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circumstances, the supervisor is liable because of his or her own actions or inactions, not

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for the actions of his or her subordinate. See id.

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As to Doe #1, Plaintiff once again fails to provide a factual basis of any kind.

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Plaintiff does not identify the false statements, duty, or hate crime. Plaintiff indicates that

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Doe #1 told Plaintiff that the runes could be assessed for propriety, but Plaintiff then

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indicates that the runes had been “lost, stolen, or destroyed.” Plaintiff does not indicate that

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Doe #1 lost, stole, or destroyed the runes and also does not indicate to what extent Doe #1

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participated in Plaintiff’s grievance process.

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Plaintiff’s allegation against Doe #2 is that as a hiring authority, Doe #2 failed to

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process Plaintiff’s grievance properly as a staff complaint. (Doc. 1 at 25.) As indicated

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above, there is no individual cause of action against a defendant whose involvement in the

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alleged violation is limited to participation in the appeals process. As such, Plaintiff’s claim

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against Doe #2 fails to establish that this specific defendant contributed to an underlying

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violation. Additionally, if Plaintiff’s concern is that he wished for his grievance to
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specifically be treated as a staff complaint, his claim once again fails as a Plaintiff has no

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right to dictate the process or procedure of a grievance.

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For the foregoing reasons, the Court RECOMMENDS that Plaintiff’s Complaint as
to the Doe Defendants be dismissed.

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V. CONCLUSION
For the foregoing reasons, the court recommends that Defendants’ motion to dismiss
for failure to state a claim be GRANTED.

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IT IS ORDERED that no later than May 23, 2017, any part to this action may file

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written objections with the Court and serve a copy on all parties. The document should be

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captioned “Objections to Report and Recommendation.”

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IT IS FURTHER ORDERED that any reply to the objections shall be filed with

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the Court and served on all parties no later than June 6, 2017. The parties are advised that

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failure to file objections within the specified time may waive the right to raise those

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objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449,455 (9th

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Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated: May 9, 2017

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