The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED
Plaintiff, a state prisoner proceeding pro se, filed a complaint under 42 U.S.C. § 1983 on January 4, 2006. The court dismissed the complaint with leave to amend on March 28, 2007. Plaintiff then filed a first amended complaint ("FAC") on May 9, 2007. Defendants moved to dismiss the FAC, to strike Plaintiff's request for punitive damages, and to designate Plaintiff's filing as a strike under the Prison Litigation Reform Act ("PLRA"). (Doc. no. 26.) Plaintiff opposed this motion. On December 21, 2007, Magistrate Judge Lewis issued a report and recommendation ("R&R") recommending that the court grant Defendants' motion to dismiss, deny Defendants' motion to strike, and deny Defendants' request to designate a strike against Plaintiff. (Doc. no. 32.) Plaintiff filed objections to the R&R on January 16, 2008, and Defendants filed a reply on January 25, 2008. For the reasons set forth below, the court hereby adopts the R&R as modified.
Plaintiff has filed this § 1983 action challenging conditions of his confinement. Defendants are Correctional Sergeant Wilhelm and Correctional Lieutenant Caldwell. Plaintiff sues both defendants in their individual and official capacities. (FAC at 2.) The complaint arises largely out of a November 2004 incident during which defendant Wilhelm allegedly seized property, including a television, from Plaintiff's cell. The court hereby incorporates by reference the R&R's statement of the facts alleged in the FAC. Plaintiff alleges claims arising under the First, Eighth, and Fourteenth Amendments. He seeks declaratory relief, $5,000 in compensatory damages, and $5,000 in punitive damages.
The R&R recommends that the court take the following action:
1. Dismiss the complaint as to Defendants in their official capacities because Defendants enjoy Eleventh Amendment immunity from suits seeking money damages and Plaintiff does not seek appropriate declaratory relief.
2. Find that Plaintiff fails to state an Eighth Amendment claim because the searches alleged do not rise to the level of cruel and unusual punishment.
3. Find that Plaintiff fails to state a due process claim because California provides an adequate post-deprivation remedy for any alleged unlawful seizure of Plaintiff's property.
4. Find that Plaintiff fails to state a First Amendment retaliation claim against Wilhelm because the November 2004 deprivation of his property served a legitimate correctional goal, Plaintiff had not initiated the grievance procedure before the November 2004 incident, Plaintiff did not have the right to remain silent, and Plaintiff failed to exhaust his administrative remedies regarding a May 23, 2005 incident.
5. Find that Plaintiff fails to state a First Amendment retaliation claim against Caldwell because Plaintiff lacks a constitutional entitlement to a specific prison grievance procedure.
6. Deny the motion to strike the punitive damages request as moot. 7. Deny the request to designate a strike against Plaintiff under the PLRA because 28 U.S.C. § 1915(g) does not authorize a court to award a strike on an action the court dismisses.
The court reviews a magistrate judge's R&R according to the standards set forth in Federal Rules of Civil Procedure ("FRCP") Rule 72(b) and 28 U.S.C. § 636. The court "shall make a de novo determination of those portions of the report . . . to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 673-74 (1980).
The court adopts the findings and conclusions of the R&R in regard to all of the recommendations listed above, with the exception of the recommendation regarding Plaintiff's retaliation claim against Wilhelm (recommendation no. 4). The court finds that Plaintiff fails to ...