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Foley v. Jolly

January 23, 2009

TRACY ROMERO FOLEY, PLAINTIFF,
v.
B. JOLLY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS

(Doc. 1)

I. Screening Requirement

Plaintiff Tracy Romero Foley ("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 Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Plaintiff's Claims

A. Summary of Plaintiff's Complaint

Plaintiff was incarcerated at the California Correctional Institution in Tehachapi, California when the events in his complaint occurred. Plaintiff's complaint alleges that Defendants unconstitutionally deprived Plaintiff of his personal property in violation of the U.S. Constitution. Plaintiff names B. Jolly, R. Wenciker, F. Gonzalez, and William J. Sullivan as defendants.

The incident giving rise to Plaintiff's claim occurred when he was transferred to the Special Housing Unit ("SHU") for assault sometime around January 26, 2006. Defendant B. Jolly came to Plaintiff's cell with the personal property Plaintiff would be allowed to possess in the SHU. Plaintiff indicated that he wanted the rest of his property donated. The crux of Plaintiff's claim appears to be a dispute between Plaintiff and Defendants as to how much personal property Plaintiff is allowed in the SHU under prison regulations. Plaintiff believes prison regulations allow for six cubic feet worth of religious personal property. Defendants believed prison regulations only allow for five books/pamphlets. Thus, Plaintiff alleges that since he was given less books then he should have been able to possess, he was unconstitutionally deprived of the religious books that he should have been allowed to possesses.

Plaintiff's complaint alleges that Defendants B. Jolly and R. Wenciker were directly involved in disposing of Plaintiff's personal property. Plaintiff alleges that Defendant F. Gonzalez was involved in resolving Plaintiff's complaint regarding his personal property, but was ineffectual and "hinder[ed] his officers from helping me." Plaintiff's complaint does not allege specific facts as to Defendant warden William J. Sullivan's involvement in the incident.

B. Plaintiff's Claim for Deprivation of Property

Plaintiff alleges that Defendants' deprivation of his property was not authorized under prison regulations. Unauthorized, intentional deprivation of property does not violate Due Process provided that a meaningful post-deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984). The rationale being that the Constitution only forbids the deprivation of property without due process of law. U.S. Const. amend. XIV, ยง 1. If California provides meaningful post-deprivation procedures, then Plaintiff would have been deprived of his property with due process of law - which does not violate the Constitution. California Law does provide adequate post-deprivation remedies for any property deprivations. See ...


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