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Kanes v. Czech

May 6, 2005

RONALD G. KANES, PLAINTIFF,
v.
AL CZECH, DEFENDANT.



The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER OF SERVICE AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket no. 3)

INTRODUCTION

Plaintiff Ronald G. Kanes is confined at Napa State Hospital (NSH). The reason for his confinement is unknown to the Court. He has filed this civil rights action under 42 U.S.C. § 1983 and seeks leave to proceed in forma pauperis. Venue is proper in this district as the acts complained of occurred in Napa County. 28 U.S.C. § 1391(b).

BACKGROUND

Plaintiff alleges that the trust account officer at NSH, Al Czech, is unlawfully withholding Plaintiff's veteran's benefits from him in order to pay the costs of Plaintiff's care, and will not allow Plaintiff access to his funds. Plaintiff maintains that he was informed by the Office of Veterans' Affairs in Sacramento that NSH could not use his funds in this way. Plaintiff has addressed this issue to the Office of Patient's Rights at NSH and to his social worker, apparently to no avail. He seeks injunctive relief.

DISCUSSION

I. STANDARD OF REVIEW

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law. West v. Atkins, 487 U.S. 42, 48 (1988). "'[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Terracom v. Valley National Bank, 49 F.3d 555, 558 (9th Cir. 1995) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

II. LEGAL CLAIM

The Court liberally construes Plaintiff's claim as one that the trust account office at NSH is in violation of Title 38 U.S.C. § 5301(a), which provides that veteran's disability benefits are not assignable, and that such payments made to a beneficiary are exempt from taxation and claims of creditors and "shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary." 38 U.S.C. § 5301(a).

The Ninth Circuit has held that § 5301 prohibits prison officials from placing holds on veteran's benefits in an inmate's account. See Nelson v. Heiss, 271 F.3d 891, 894-96 (9th Cir. 2001); see also Higgins v. Beyer, 293 F.3d 683, 690-91 (3d Cir. 2002) (following Nelson). At this juncture in the proceedings, the Court assumes without deciding that the rationale set forth in Nelson is applicable equally in Plaintiff's situation.

Accordingly, the Court will order Defendant Al Czech, in his official capacity as the trust account officer at NSH, to respond to the complaint.

CONCLUSION

For the foregoing reasons, the Court ...


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