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Foley v. Jolly

March 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

FINDINGS AND RECOMMENDATION

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. Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and was incarcerated at the California Correctional Institution in Tehachapi, California ("CCI-Tehachapi") at all relevant times in his complaint. Plaintiff is suing under section 1983 for the violation of his rights under the Due Process Clause of the Fourteenth Amendment. Plaintiff names B. Jolly (corrections officer), R. Wenciker (corrections officer), and F. Gonzalez (chief deputy warden, CCI-Tehachapi) as defendants. For the reasons set forth below, Plaintiff's First Amended Complaint is dismissed with prejudice.

I. Screening Requirement

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. Background

A. Procedural Background

Plaintiff filed the original complaint in this action on March 10, 2008 (Doc. #1.) Plaintiff's original complaint was screened on January 23, 2009 and was dismissed for failure to state a claim. (Doc. #6.) Plaintiff was given an opportunity to file a First Amended Complaint which Plaintiff filed on February 20, 2009. (Doc. #7.) This action proceeds on Plaintiff's First Amended Complaint.

B. Factual Background

On January 27, 2006, Defendant Jolly spoke with Plaintiff about the processing of his property. Defendant Jolly gave Plaintiff a list of items that he could not possess while housed in the Special Housing Unit ("SHU"). Plaintiff informed Defendant Jolly that he would be donating all of the items he would not be able to keep.

Afterwards, Plaintiff made inquiries regarding the disposition of his religious books. Plaintiff explained to Defendant Weneiker that he should be given back some of his religious property because prison regulations permitted Plaintiff to possess six cubic feet worth of religious items.

Defendant Weneiker became irrate at Plaintiff and told him that the policy on religious property had changed. Plaintiff continued to write complaints regarding the disposal of his religious property and was told by Defendant Gonzalez that Defendant Jolly and Weneiker were not liable for the disposal of Plaintiff's books.

III. Discussion

Plaintiff alleges that he was deprived of his property in violation of the Constitution. 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). Whether a deprivation of property rises to the level of a constitutional violation depends on whether the deprivation was negligent or unauthorized. A negligent deprivation of property does not violate the Due Process Clause when adequate post-deprivation remedies are available because pre-deprivation process is impracticable since the state cannot know when such deprivations will occur. Hudson v. Palmer, 468 U.S. 517, 533 (1984). Similarly, an intentional, but unauthorized, deprivation of property does not violate the Due Process Clause when adequate post-deprivation ...


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