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Dean v. Jones


June 22, 2010



Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. By order filed April 27, 2010, the court dismissed plaintiff's amended complaint and granted him leave to file a second amended complaint. On May 12, 2010, plaintiff filed a second amended complaint. However, before the court screened his second amended complaint, plaintiff filed a third amended complaint on May 17, 2010. As a general rule, an amended complaint supercedes a prior complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, the court will disregard plaintiff's second amended complaint and consider his third amended complaint for screening purposes.


The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 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. See 28 U.S.C. § 1915A(b)(1) & (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations of an official personnel's involvement in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).


In his third amended complaint, plaintiff identifies Dennis B. Jones and Jules B. Francis as the defendants and alleges as follows:

On [December 22, 2009], the defendants demanded $516.27 from the plaintiff's trust account under a fraudulent writ of execution.

The plaintiff has been authoritatively denied access to his very own money since [December 22, 2007]. The identity used for the money owed was fictitious. The plaintiff has been deprived of access to emergency lotions for skin graph, vitamins for dietary needs, [and] hair care, as a direct result of erroneous execution by the Department of Revenue and Recovery. 10669 Coloma Rd.

Rancho Cordova CA. 95670 (916) 875-7761. (Third Am. Compl. (TAC) at 5.) In terms of relief, plaintiff seeks to recover $516.27 in restitution from defendants. (Id.)


In his third amended complaint, plaintiff appears to allege that defendants Jones and Francis have fraudulently deprived him of his trust account funds in violation of the Due Process Clause of the Fourteenth Amendment. In this regard, the United States Supreme Court has held that "an 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). Thus, where the state provides a meaningful post-deprivation remedy, only authorized and intentional deprivations constitute actionable violations of the Due Process Clause. A deprivation is "authorized" if it is carried out pursuant to established state procedures, regulations or statutes. Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985).

Here, plaintiff does not allege facts indicating that defendants have committed an "authorized" deprivation of his trust account property. Rather, plaintiff contends that defendants used a "fraudulent writ of execution" and a fictitious identity to withdraw funds from his trust account. (TAC at 5.) Such fraudulent activity is not conduct that defendants are authorized to engage in pursuant to established state procedures, regulations or statutes. Thus, plaintiff's claim is not actionable under the Due Process Clause of the Fourteenth Amendment, unless there is no meaningful post-deprivation remedy for his loss. See Hudson, 468 U.S. at 533; Piatt, 773 F.2d at 1036.

California Government Code, §§ 900, et seq provides plaintiff with a meaningful post-deprivation remedy for his loss. Under these state provisions, the California Legislature has provided plaintiff with an avenue to seek redress for his tort claims, such as fraud, against public officials. Plaintiff must therefore first attempt to seek redress in the state system before suing in federal court. Accordingly, plaintiff's third amended complaint fails to state a cognizable claim for relief.


IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly assign this case to a District Judge.

Also, for the reasons stated above, IT IS HEREBY RECOMMENDED that:

1. Plaintiff's May 17, 2010 third amended complaint (Doc. No. 13) be dismissed with prejudice for plaintiff's failure to state a claim upon which relief may be granted.

2. This case be closed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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