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Perkins v. Pfeiffer

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 15, 2008

GARY RONNELL PERKINS, PLAINTIFF,
v.
C. PFEIFFER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (Docs. 7 and 8)

Plaintiff Gary Ronnell Perkins ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.

On October 6, 2008, the Magistrate Judge filed a Findings and Recommendations that recommended the complaint be dismissed because Plaintiff had not alleged a cognizable claim. The Findings and Recommendations were served on Plaintiff and which contained notice to Plaintiff that any objection to the Findings and Recommendations was to be filed within thirty days. Plaintiff filed an Objection to the Findings and Recommendations on November 3, 2008.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of this case. Having carefully reviewed the entire file, including the objections, the court finds the Findings and Recommendations to be supported by the record and by proper analysis. As explained by the Magistrate Judge, Plaintiff's allegations concerning Defendants' failure to process Plaintiff's administrative appeals do not state a Fourteenth Amendment Due Process Clause violation because there is no liberty interest in the administrative appeals process. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003).

In the objections, Plaintiff attempts to change the nature of this action from one contending his due process rights were violated by Defendants' handling of his administrative procedures to a contention that Defendants violated Plaintiff's due process rights when they failed to process and mail personal artwork to family members. Preliminarily, the court notes that the complaint in this action clearly concerns Plaintiff's rights to petition the government, not Plaintiff's property rights concerning artwork. Plaintiff may not change the nature of this suit by adding new claims in his objections. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints). Regardless, from the complaint's allegations, Plaintiff has failed to state a claim for a violation of his due process rights based on Defendants' not mailing his personal artwork to family members. The Due Process Clause protects prisoners from being deprived of property without due process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). However, while an authorized, intentional deprivation of property is actionable under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), "[a]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533 (1984). Here, while the objections imply Defendants violated prison rules in not mailing the artwork to family members, the complaint's allegations do not adequately state a claim for an unauthorized deprivation of property.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed October 6, 2008, is adopted in full;

2. This action is dismissed, with prejudice, for failure to state a claim upon which relief may be granted under section 1983;

3. The Clerk of the Court is DIRECTED to close this file.

IT IS SO ORDERED.

20081215

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