United States District Court, N.D. California
September 21, 2005.
JOSE LUIS MORALES, Plaintiff,
RICHARD KIRKLAND, Defendants.
The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER OF DISMISSAL
Plaintiff, an inmate at Pelican Bay State Prison, has filed a
pro se civil rights complaint under 42 U.S.C. § 1983.
A. Standard of Review
Federal courts must engage in a preliminary screening of cases
in which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity.
28 U.S.C. § 1915A(a). In its review the court must identify any cognizable
claims, and dismiss any claims which are frivolous, malicious,
fail to state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such relief.
Id. at 1915A(b)(1),(2).
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 deprivation was committed by a person acting
under the color of state law. West v. Atkins, 487 U.S. 42, 48
(1988). B. Legal Claims
Allegations that a prisoner was deprived of property, whether
negligently or deliberately, are not sufficient to state a claim
under section under § 1983 if the deprivation was random and
unauthorized, as opposed to pursuant to a policy. Parratt v.
Taylor, 451 U.S. 527, 535-44 (1981) (state employee negligently
lost prisoner's hobby kit), overruled in part on other grounds,
Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Hudson v.
Palmer, 468 U.S. 517, 533 (1984) (intentional destruction of
inmate's property). The availability of an adequate state
post-deprivation remedy, e.g. a state tort action, precludes
relief because it provides adequate procedural due process. King
v. Massarweh, 782 F.2d 825, 826 (9th Cir. 1986). California law
provides an adequate post-deprivation remedy for any property
deprivations. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir.
1994). Nor is a prisoner protected by the Fourth Amendment
against the seizure, destruction or conversion of his property.
Taylor v. Knapp, 871 F.2d 803, 806 (9th Cir. 1989).
Plaintiff contends that his television was made inoperable when
prison employees attempted to remove the internal speaker, which
prison regulations evidently do not allow. The prison offered to
replace the television with another, but plaintiff declined the
offer, apparently because the prison was unwilling to guarantee
how long it would work. Plaintiff has since purchased a new
Plaintiff's assertion that the prison deprived him of his
television set is an allegation of a random and unauthorized
deprivation of property of the sort not cognizable under § 1983.
Because it is obvious that the institution does not have a policy
of rendering prisoners' televison sets inoperable, which would be
the only circumstance under which plaintiff could avoid the
Parratt rule, it would be futile to allow plaintiff to amend.
The case therefore will be dismissed with prejudice. CONCLUSION
For the reasons set out above, this case is DISMISSED with
prejudice. Plaintiff's implied motion to proceed in forma
pauperis (doc 3) is DENIED. No fee is due. The clerk shall close
IT IS SO ORDERED.
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