(PC) Young v. Covello

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 JERRY WAYNE YOUNG, No. 2:22-cv-00055-JAM-CKD P 12 Plaintiff, 13 v. ORDER 14 PATRICK COVELLO, et al., 15 Defendants. [17] 18 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 19 U.S.C. § 1983 . This proceeding was referred to this court by Local Rule 302 pursuant to 28 20 U.S.C. § 636 (b)(1). 21 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 22 declaration that makes the showing required by 28 U.S.C. § 1915 (a), his request will be granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 24 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 25 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 26 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 27 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 28 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 1 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915 (b)(2). 2 I. Screening Requirement 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, [12] 490 U.S. at 327 . The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989); Franklin, 745 F.2d at 1227 . 15 In order to avoid dismissal for failure to state a claim a complaint must contain more than 16 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 17 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 19 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 20 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570 . “A 21 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 22 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 23 at 678 . When considering whether a complaint states a claim upon which relief can be granted, 24 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 25 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 26 U.S. 232, 236 (1974). 27 II. Allegations in the Complaint 28 In his complaint, plaintiff requests the court to order Mule Creek State Prison staff to 1 release his new tv and radio that he purchased, but has yet to receive. ECF No. 1 at 3. According 2 to exhibits attached to the complaint, plaintiff’s prior tv and radio were broken by his cell mate in 3 October 2019. ECF No. 1 at 7. However, plaintiff appears to dispute the accuracy of those 4 exhibits by alleging that the records were falsified. ECF No. 1 at 3. Plaintiff also requests 5 damages to be determined by a jury. 6 III. Legal Standards 7 The United States Supreme Court has held that “an unauthorized intentional deprivation 8 of property by a state employee does not constitute a violation of the procedural requirements of 9 the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for 10 the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, where the state 11 provides a meaningful postdeprivation remedy, only authorized, intentional deprivations 12 constitute actionable violations of the Due Process Clause. An authorized deprivation is one 13 carried out pursuant to established state procedures, regulations, or statutes. Piatt v. MacDougall, [14] 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142 , 15 1149 (9th Cir. 1987). 16 IV. Analysis 17 In the instant case, plaintiff has not alleged any facts which suggest that the deprivation of 18 his property was authorized. The California Legislature has provided a remedy for tort claims 19 against public officials in the California Government Code, §§ 900, et seq. Since plaintiff has not 20 attempted to seek redress in the state system, he cannot sue in federal court on the claim that the 21 state deprived him of property without due process of the law. The court concludes that this 22 claim must, therefore, be dismissed as frivolous. See 28 U.S.C. § 1915 (e)(2). The court will, 23 however, grant leave to file an amended complaint. 24 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 25 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 26 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, plaintiff’s amended complaint must allege in 27 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 28 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 1 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 2 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 3 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 4 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 5 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 6 complaint be complete in itself without reference to any prior pleading. This is because, as a 7 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 8 F.2d 55 , 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 9 longer serves any function in the case. Therefore, in an amended complaint, as in an original 10 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 11 V. Plain Language Summary for Pro Se Party 12 The following information is meant to explain this order in plain English and is not 13 intended as legal advice. 14 The court has reviewed the allegations in your complaint and determined that they do not 15 state any claim against the defendants. Your complaint is being dismissed, but you are being 16 given the chance to fix the problems identified in this screening order. 17 Although you are not required to do so, you may file an amended complaint within 30 18 days from the date of this order. If you choose to file an amended complaint, pay particular 19 attention to the legal standards identified in this order which may apply to your claims. 20 In accordance with the above, IT IS HEREBY ORDERED that: 21 1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 2) is granted. 22 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 23 shall be collected and paid in accordance with this court’s order to the Director of the California 24 Department of Corrections and Rehabilitation filed concurrently herewith. 25 3. Plaintiff’s complaint is dismissed. 26 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 27 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 28 Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number 1 | assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and 2 || two copies of the amended complaint; failure to file an amended complaint in accordance with 3 || this order will result in a recommendation that this action be dismissed. 4 | Dated: April 28, 2022 Card ke Lg a 5 CAROLYN K DELANEY? 6 UNITED STATES MAGISTRATE JUDGE [10] 1] 12 | 12/youn0055.14.docx