Austin v. Van Winkle et al

Filing 5

ORDER DISMISSING COMPLAINT WITH LEAVE GRANTED TO AMEND 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 11/28/11. ("IT IS HEREBY ORDERED that: (1) Austin's Complaint is DISMISSED for failure to state a claim. See 28 U.S.C. &# 167; 1915(e)(2)(b) & 1915A(b)(1). (2) Austin is GRANTED leave to file a proposed amended complaint curing the deficiencies noted above by December 12, 2011. Failure to timely or properly amend the Complaint will result in dismissal of this action for failure to state a claim, and may be counted as strike pursuant to 28 U.S.C. § 1915(g). (3) The Clerk of Court is directed to mail a form prisoner civil rights complaint to Austin so that he may comply with the directions in this Order.") (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Gerald Lewis Austin served a copy of this order and a prisoner civil rights complaint form with instructions by first class mail at the address of record on November 29, 2011.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GERALD LEWIS AUSTIN,
#A1076082,
Plaintiff,
vs.
CORRECTIONAL OFFICER VAN
WINKLE, CORRECTIONAL OFFICER
PEPPERS, INMATE ALWYEN
PADILLA, CORRECTIONAL
SEARGENT SALAS
Defendant.
____________________________

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CIV. NO. 11-00691 SOM-BMK
ORDER DISMISSING COMPLAINT
WITH LEAVE GRANTED TO AMEND

ORDER DISMISSING COMPLAINT WITH LEAVE GRANTED TO AMEND
Before the court is pro se Plaintiff Gerald Lewis
Austin’s prisoner civil rights complaint.

Austin is incarcerated

at the Halawa Correctional Facility (“HCF”) and is proceeding in
forma pauperis. [ECF #4.]

Austin names Adult Correctional

Officer (“ACO”) Van Winkle (“Van Winkle”), ACO Peppers, ACO
Sergeant Salas, and inmate Alwyen Padilla (“Padilla”), as
defendants, alleging that they confiscated or were otherwise
responsible for the confiscation of Austin’s personal property.
Austin’s Complaint is DISMISSED for failure to state a
claim, pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1).
Austin is granted leave to amend the Complaint, if possible, to
cure the deficiencies detailed below.
//
//

I. STATUTORY SCREENING
The court must screen all civil actions brought by
prisoners that relate to prison conditions and/or seek redress
from a governmental entity, officer, or employee of a
governmental entity.

28 U.S.C. § 1915A(a).

The court must

dismiss a complaint or portion thereof if its claims are legally
frivolous or malicious, fail to state a claim on which relief may
be granted, or seek monetary relief from a defendant who is
immune from such relief.

28 U.S.C. § 1915(e)(2); 28 U.S.C.

§ 1915A(b); 42 U.S.C. § 1997e (c)(1).
A complaint may be dismissed as a matter of law for
failure to state a claim for (1) lack of a cognizable legal
theory; or (2) insufficient facts under a cognizable legal
theory.

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

(9th Cir. 1990).

To state a claim, a pleading must contain a

“short and plain statement of the claim showing that the pleader
is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

While Rule 8

does not demand detailed factual allegations, “it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S. Ct.

1937, 1949 (2009).

“Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not
suffice.”

Id.

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“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”

Id. (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007)).

A claim is plausible “when the plaintiff

pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Id.

“Determining whether a complaint

states a plausible claim for relief [is] . . . a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”

Id. at 1950.

Thus, although a

plaintiff’s specific factual allegations may be consistent with a
constitutional claim, a court must assess whether there are other
“more likely explanations” for a defendant’s conduct.

Id. at

1951.
The court must construe a pro se complaint liberally,
accept all allegations of material fact as true, and construe
those facts in the light most favorable to the plaintiff.
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

Leave to

amend should be granted if it appears at all possible that the
plaintiff can correct the defects of his or her complaint.

Lopez

v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
III.

DISCUSSION

“To sustain an action under section 1983, a plaintiff
must show ‘(1) that the conduct complained of was committed by a
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person acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or statutory
right.’”

Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)

(citation omitted); see also West v. Atkins, 487 U.S. 42, 48
(1988); 42 U.S.C. § 1983.
A.

Austin’s Claim’s
Austin states that, on or about July 10, 2011, ACO Van

Winkle ordered Austin and his cellmate, Padilla, to strip and
submit to a cell search.

See Compl., ECF #1, Count I.

The cell

search turned up tattooing equipment that Austin claims was
Padilla’s.

Id. Count III.

Austin states that ACO Peppers

confiscated both Padilla’s and Austin’s personal property.
Austin says that, even though Padilla has admitted that the
tattooing equipment was his and has been sanctioned with thirty
days in segregation, ACO Sergeant Salas refuses to return
Austin’s property.

Austin does not complain about the strip

search, but protests only the confiscation of his personal
property, seeking a million dollars and the return of his
property.
B.

Inmate Padilla is Dismissed
Austin fails to allege any facts showing that Padilla

either acted under color of state law or suggesting that Padilla
violated Austin’s constitutional rights.

While Padilla may have

possessed the paraphernalia and may therefore be somewhat
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responsible for the confiscation of Austin’s property during the
search of their cell, that does not equate to the requisite level
of culpability needed to state a constitutional violation.
Austin himself states that Padilla was negligent in leaving the
equipment in their cell.

See e.g., Daniels v. Williams, 474 U.S.

327, 328-29 (1986) (stating that § 1983 does not generally
provide a remedy for negligence).

Nor does Austin provide any

facts suggesting that Padilla, an inmate, acted in concert in
some way with prison officials in a deliberate effort to deprive
Austin of constitutionally protected rights, such that he can be
perceived as having acted under the color of state law.

Padilla

and any claims against him are DISMISSED.
C.

Austin Otherwise Fails to State a Claim
Ordinarily, due process of law requires notice and an

opportunity for some kind of hearing prior to the deprivation of
a significant property interest.

See Memphis Light, Gas & Water

Div. v. Craft, 436 U.S. 1, 19 (1978).

Neither negligent nor

intentional deprivation of property states a due process claim
under § 1983, however, if the deprivation was random and
unauthorized.

See Hudson v. Palmer, 468 U.S. 517, 533 (1984)

(finding no claim under § 1983 for intentional destruction of
prisoner’s property); Parratt v. Taylor, 451 U.S. 527, 535-44
(1981) (finding no claim under § 1983 when state employee
negligently lost prisoner’s property), overruled in part on other
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grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986).

The

availability of an adequate state post-deprivation remedy, such
as a state tort action, precludes relief under § 1983 because the
state remedy provides sufficient procedural due process.

See

Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994); Zinermon
v. Burch, 494 U.S. 113, 128 (1990) (holding state statutory
provision for post-deprivation hearing or common law tort remedy
for erroneous deprivation satisfies due process when state cannot
foresee, and therefore provide meaningful hearing prior to,
deprivation of property); King v. Massarweh, 782 F.2d 825, 826
(9th Cir. 1986) (same).

Hawaii law provides that public

employees are liable for torts in the same manner and to the same
extent as private individuals under like circumstances.
Rev. Stat. § 662-2.

Haw.

Because Hawaii expressly waives its immunity

for its employees’ torts, section 662-2 provides an adequate
post-deprivation remedy for an inmate’s alleged loss of property.
Austin alleges that his personal property was
confiscated without warning during a cell search that revealed
illegal contraband.

He further alleges that Sergeant Salas told

him his property would be returned to him, but has not returned
it yet.

Such allegations, i.e., allegations of essentially

random and unauthorized deprivations of personal property, do not
state violations of federal constitutional rights.

Although such

unauthorized deprivations of personal property may amount to

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state law violations, they do not constitute federal due process
violations.

Consequently, Austin’s allegations regarding the

confiscation of his personal property fail to state a claim for
relief under § 1983.

Because Austin’s claims are deficient as a

matter of law, and leave to amend would be futile, the Complaint
is DISMISSED with prejudice.
D.

Leave to Amend
The Complaint is DISMISSED for failure to state a

claim.

Although it appears unlikely, Austin may be able to cure

the deficiencies in his claims with additional facts.

Austin may

file a proposed amended complaint on or before December 12, 2011.
The proposed amended complaint must cure the deficiencies noted
above and demonstrate how the conditions complained of resulted
in a deprivation of federal constitutional or statutory rights.
The court will not refer to the original pleading to
make any amended complaint complete.

Local Rule 10.3 requires

that an amended complaint be complete in itself without reference
to any prior pleading.

Defendants not named and claims not

realleged in an amended complaint are deemed waived.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

See King v.

Furthermore, as a

general rule, an amended complaint supersedes the original
complaint.

See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

In an amended complaint, each claim and the involvement of each
Defendant must be sufficiently alleged.
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IV.

CONCLUSION

IT IS HEREBY ORDERED that:
(1)
claim.

Austin’s Complaint is DISMISSED for failure to state a
See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1).

(2) Austin is GRANTED leave to file a proposed amended
complaint curing the deficiencies noted above by December 12,
2011.

Failure to timely or properly amend the Complaint will

result in dismissal of this action for failure to state a claim,
and may be counted as strike pursuant to 28 U.S.C. § 1915(g).
(3)

The Clerk of Court is directed to mail a form prisoner

civil rights complaint to Austin so that he may comply with the
directions in this Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 28, 2011.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Austin v. Van Winkle, et al., Civ. No. 11-00691 SOM-BMK, Order Dismissing Complaint
With Leave to Amend; psa/ Screening/dmp/ 2011/Austin 11-691 SOM (dsm ftsc)

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