McFalls v. Alonzo

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 ROBERT NELSON MCFALLS, Case No. 21-cv-849-MMA (RBB) CDCR #G-45794, [12] ORDER DISMISSING DUE Plaintiff, 13 PROCESS CLAIM FOR FAILURE v. TO STATE A CLAIM PURSUANT [14] TO 28 U.S.C. § 1915 (e)(2) AND 28 MARIO ALONZO, 15 U.S.C. § 1915A(b); AND Defendant. 16 [Doc. No. 8] 17 DIRECTING U.S. MARSHAL TO 18 EFFECT SERVICE ON DEFENDANT [20] On April 30, 2021, Plaintiff Robert Nelson McFalls (“Plaintiff”) filed a civil rights [21] Complaint pursuant to 42 U.S.C. § 1983 . See Doc. No. 1 (“Compl.”). On June 23, 2021, [22] the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), sua sponte [23] screened Plaintiff’s Complaint, and dismissed Plaintiff’s Complaint for failure to state a [24] claim. See Doc. No. 5. Plaintiff was granted sixty (60) days leave to file an amended [25] complaint to correct the deficiencies of the pleading identified by the Court. See id. [26] After receiving an extension of time, Plaintiff filed his First Amended Complaint [27] (“FAC”) on September 24, 2021. See Doc. Nos. 7, 8. [28] 1 I. SCREENING PER 28 U.S.C. §§ 1915 (E)(2)(B) AND 1915A(B) 2 A. Legal Standard 3 Plaintiff’s FAC requires a pre-answer screening pursuant to 28 U.S.C. 4 § 1915(e)(2)(B) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss 5 a prisoner’s IFP complaint, or any portion of it, that is frivolous, malicious, fails to state a 6 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 7 1122 , 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915 (e)(2)); Rhodes v. 8 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 9 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need 10 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th 11 Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 12 2012)). 13 “The standard for determining whether a Plaintiff has failed to state a claim upon 14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 16 F.3d 1108 , 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 17 Cir. 2012) (noting that screening pursuant to section 1915A “incorporates the familiar 18 standard applied in the context of failure to state a claim under Federal Rule of Civil 19 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual 20 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 21 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 570 22 (2007)); Wilhelm, 680 F.3d at 1121 . 23 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 24 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 25 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for 26 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 27 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 28 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 1 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962 , 969 2 (9th Cir. 2009). 3 B. Plaintiff’s Allegations 4 In his FAC, Plaintiff alleges that on March 7, 2020, Defendant searched his cell 5 and found Plaintiff’s phone containing his bank account information. See Doc. No. 8 at 6 3.1 Plaintiff contends Defendant copied his account information and later used that 7 information to transfer $700.00 from Plaintiff’s bank account to himself. See id. at 3, 16– 8 17. On March 24, 2020, Plaintiff discovered the suspicious withdrawal and filed an 9 administrative grievance against Defendant, alleging Defendant had unlawfully stolen his 10 money using account information that Defendant improperly copied when searching 11 Plaintiff’s phone book. See Doc. No. 8 at 3, 19. 12 Plaintiff alleges that on March 29, 2020, four days after filing his grievance, 13 Defendant “had Plaintiff sent to Ad-Seg [administrative segregation] on a false claim of 14 battery on a peace officer.” Doc. No. 8 at 3. Later that day, while Plaintiff was “in the 15 cages in the program office,” Defendant directed officials to “make sure you find a way 16 to keep this asshole’s property.” Id. Plaintiff states he filed another administrative 17 grievance on April 6, 2020, complaining of Defendant’s “continued harassment and 18 targeting and retaliation.” Id. Plaintiff filed another grievance on April 23, 2020, seeking 19 the return of his property. See id. On June 5, 2020, Defendant “came to [Plaintiff’s] cell 20 while [he] was in Ad-Seg on a charge [Defendant] had his staff trump up and proceeded 21 to antagonize and harass [Plaintiff].” Id. at 3. Plaintiff alleges Defendant “taunted” him 22 through his cell window by “panting, laughing while repeatedly saying ‘Got him, Got 23 him. Got him.’” Id. Plaintiff states that Defendant “continued to retaliate against him” in 24 the weeks that followed. See id. [28] 1 C. 42 U.S.C. § 1983 2 “Section 1983 creates a private right of action against individuals who, acting 3 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 4 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 5 substantive rights, but merely provides a method for vindicating federal rights elsewhere 6 conferred.” Graham v. Connor, 490 U.S. 386 , 393‒94 (1989) (internal quotation marks 7 and citations omitted). “To establish § 1983 liability, a plaintiff must show both 8 (1) deprivation of a right secured by the Constitution and laws of the United States, and 9 (2) that the deprivation was committed by a person acting under color of state law.” Tsao 10 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 11 D. Discussion 12 Plaintiff raises two claims in his FAC. First, Plaintiff contends his due process 13 rights were violated when Defendant took Plaintiff’s account information and used it to 14 later transfer money to Defendant. See Doc. No. 8 at 4. Second, Plaintiff argues that 15 Defendant violated his First Amendment rights when Defendant retaliated against him for 16 filing grievances related to the allegedly stolen money. See id. at 3. 17 1. Due Process Claim 18 The Due Process Clause of the Fourteenth Amendment protects prisoners’ interests 19 in their personal property. See Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). 20 However, the Due Process Clause does not protect against all deprivations of property by 21 the state; it only protects against deprivations “without due process of law.” U.S. Const. 22 amend. XIV; see also Baker v. McCollan, 443 U.S. 137, 145 (1979). A deprivation of 23 property without a meaningful pre-deprivation hearing may be actionable under the 24 Fourteenth Amendment’s Due Process Clause where it is authorized and intentional. See 25 Hudson v. Palmer, 468 U.S. 517 , 532 & n.13 (1984) (citing Logan v. Zimmerman Brush 26 Co., 455 U.S. 422 , 435–36, (1982)). An “authorized” deprivation of property is one 27 carried out pursuant to established state procedures, regulations, or statutes. Piatt v. 28 McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985). In other words, a plaintiff is entitled to 1 pre-deprivation process when the state is “in a position to provide” due process—“where 2 a deprivation of property is caused by conduct pursuant to established state procedure, 3 rather than random and unauthorized action.” Hudson, 468 U.S. at 532, 534 . 4 Where a prisoner alleges he was deprived of a property interest caused by the 5 unauthorized acts of state officials, either negligent or intentional, the prisoner cannot 6 state a constitutional claim where the state provides an adequate post-deprivation remedy. 7 See Zinermon v. Burch, 494 U.S. 113 , 129–32 (1990); Hudson, 468 U.S. at 533 (holding 8 that the unauthorized negligent or intentional deprivation of property does not violate due 9 process if a meaningful post-deprivation remedy is available). The California Tort 10 Claims Act (“CTCA”) provides California state inmates with an adequate post11 deprivation state remedy for the random and unauthorized taking of property. See 12 Barnett v. Centoni, 31 F.3d 813 , 816–17 (9th Cir. 1994) (“California law provides an 13 adequate post-deprivation remedy for any property deprivations.”) 14 Here, Plaintiff challenges Defendant took his property in contravention of a statute 15 or regulation authorizing it. Because the CTCA provides him with an adequate state 16 post-deprivation remedy, Plaintiff’s due process claim challenging the deprivation is not 17 cognizable in a section 1983 action. As such, the Court concludes Plaintiff fails to state a 18 claim against Defendant for a violation of his due process rights because the alleged 19 deprivation was unauthorized, and California provides adequate post-deprivation 20 remedies. See Hudson, 468 U.S. at 533 ; Barnett, 31 F.3d at 816–17. 21 2. First Amendment Retaliation Claim 22 Prison officials may not retaliate against prisoners for exercising their First 23 Amendment rights to pursue litigation or file administrative grievances. See Rhodes v. 24 Robinson, 408 F.3d 559, 567 (9th Cir. 2005). “Within the prison context, a viable claim 25 of First Amendment retaliation entails five basic elements: (1) [a]n assertion that a state 26 actor took some adverse action against an inmate (2) because of (3) that prisoner’s 27 protected conduct, and that such action (4) chilled the inmate’s exercise of his First [28] 1 Amendment rights, and (5) the action did not reasonably advance a legitimate 2 correctional goal.” Id. at 567–68. 3 Plaintiff alleges: (1) he submitted two grievances asserting lost property in 4 accordance with his First Amendment rights; and (2) shortly after he submitted the 5 grievances complaining about Defendant’s conduct, Defendant punished him by having 6 him sent to administrative segregation on “a false claim.” Doc. No. 8 at 3. Plaintiff 7 further alleges that after filing the grievances, Defendant harassed and taunted him while 8 he was in administrative segregation, causing Plaintiff to believe that no “legitimate 9 penological purpose” existed for holding him in administrative segregation. See Rhodes, 10 408 F.3d at 568. Although it appears Plaintiff did file at least one subsequent grievance 11 against Defendant on April 6, 2020, “at the pleading stage, [the Ninth Circuit has] never 12 required a litigant, per impossibile, to demonstrate a total chilling of his First 13 Amendment rights to file grievances and to pursue civil rights litigation in order to 14 perfect a retaliation claim. Speech can be chilled even when not completely silenced.” 15 Id. (italics in original). Rather, “the proper First Amendment inquiry asks ‘whether an 16 official’s acts would chill or silence a person of ordinary firmness from future First 17 Amendment activities.’” Id. at 658–59 (quoting Mendocino Envtl. Ctr. v. Mendocino 18 County, 192 F.3d 1283 , 1300 (9th Cir. 1999)). “Because ‘it would be unjust to allow a 19 defendant to escape liability for a First Amendment violation merely because an 20 unusually determined plaintiff persists in his protected activity,’ [a plaintiff] does not 21 have to demonstrate that his speech was ‘actually inhibited or suppressed.’” Id. at 569 22 (quoting Mendocino Envtl. Ctr., 192 F.3d at 1300). Instead, a plaintiff need only allege 23 “that his First Amendment rights were chilled, though not necessarily silenced.” Id. 24 Based on the allegations contained in the FAC, Plaintiff asserts a plausible First 25 Amendment retaliation claim against Defendant. 26 III. CONCLUSION 27 For the foregoing reasons, the Court DISMISSES Plaintiff’s due process claims 28 against Defendant without leave to amend for failure to state a claim pursuant to 28 1 U.S.C. §§ 1915 (e)(2) & 1915A(b) and DIRECTS the Clerk of Court to issue a summons 2 as to Plaintiff’s FAC, see Doc. No. 8, upon Defendant and forward it to Plaintiff along 3 with a blank U.S. Marshal Form 285. In addition, the Court DIRECTS the Clerk of 4 Court to provide Plaintiff with a certified copy of this Order, a certified copy of his FAC, 5 and the summons so that he may serve Defendant. 6 Upon receipt of these documents, the Court DIRECTS Plaintiff to complete the 7 U.S. Marshal Form 285 as completely and accurately as possible, include an address 8 where Defendant may be found and/or subject to service pursuant to CivLR 4.1c., and 9 return the form to the U.S. Marshal according to the instructions the Clerk of Court 10 provides. 11 The Court further DIRECTS the U.S. Marshal to serve a copy of the FAC and 12 summons upon Defendant upon receipt and as directed by Plaintiff on the completed U.S. 13 Marshal Form 285, and to promptly file proof of service, or proof of any attempt at 14 service unable to be executed, with the Clerk of Court. See CivLR 5.2. All costs of that 15 service will be advanced by the United States. See 28 U.S.C. § 1915 (d); Fed. R. Civ. P. 16 4(c)(3). The Court additionally DIRECTS Defendant, once served, to respond to 17 Plaintiff’s FAC within the time provided by the applicable provisions of Federal Rule of 18 Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2). While a defendant may 19 occasionally be permitted to “waive the right to reply to any action brought by a prisoner 20 confined in any jail, prison, or other correctional facility under section 1983,” once the 21 Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915 (e)(2) and 22 § 1915A(b), and thus, has made a preliminary determination based on the face on the 23 pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,” 24 defendant is required to respond. Id. § 1997e(g). 25 Finally, the Court ORDERS Plaintiff, after service has been effected by the U.S. 26 Marshal, to serve upon Defendant, or if appearance has been entered by counsel, upon 27 Defendant’s counsel, a copy of every further pleading, motion, or other document 28 submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 1 |}include with every original document he seeks to file with the Clerk of the Court, a 2 || certificate stating the manner in which a true and correct copy of that document was 3 served on Defendant or his counsel, and the date of that service. See CivLR 5.2. Any 4 ||document received by the Court that has not been properly filed with the Clerk or fails to 5 include a Certificate of service upon Defendant or his counsel, may be disregarded. 6 IT IS SO ORDERED. 7 ||Dated: November 3, 2021 8 Mitel (highter 9 HON. MICHAEL M. ANELLO 10 United States District Judge