IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 23, 2010
MICHAEL CORTEZ, PLAINTIFF,
DANSBY, ET AL., DEFENDANTS.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).
On January 20, 2010, the court dismissed plaintiff's complaint with leave to amend. On March 4, 2010 plaintiff filed an amended complaint. Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).
Plaintiff alleges that defendant Dansby "was authorize[d] to confiscate [plaintiff's] personal property[,] which was the direct cause for the lost [sic] of plaintiff's property. Am. Compl., ¶ 3. Plaintiff alleges that some of his property was returned to him two weeks later, but that some of his property is missing or lost. Id. ¶ 9.
In dismissing plaintiff's original complaint, which made similar allegations, the court informed plaintiff that:
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). 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, intentional deprivations constitute actionable violations of the Due Process Clause. An authorized deprivation is one carried out pursuant to established state procedures, regulations, or statutes. Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). California provides an adequate post-deprivation remedy. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (per curiam).
Dckt. No. 8 at 3. In his amended complaint, plaintiff terms defendant Dansby's confiscation of plaintiff's property as "authorized." However, plaintiff does not allege that defendant was acting pursuant to an established procedure, regulation, or statute. Liberally construed, it appears that plaintiff use of the word "authorized" is an attempt to plead a policy or established practice. However, even assuming the deprivation was authorized pursuant to an established procedure, regulation, or statute, plaintiff does not allege that he was denied adequate process required by the Due Process Clause. Without alleging either that the conduct was authorized pursuant to a state procedure or that the post-deprivation remedies available were somehow inadequate, plaintiff has failed to state a claim for relief. Further, plaintiff claims that after defendant confiscated plaintiff's property, some of the property went missing or lost, suggesting that the deprivation may have been unauthorized and/or negligent. Plaintiff cannot establish a section 1983 claim for unauthorized or negligent deprivation of property without due process of law, because California law provides an adequate post-deprivation remedy. See Hudson, 468 U.S. at 533 (holding that a prisoner cannot state a constitutional claim for deprivation of a property interest where the state provides an adequate post-deprivation remedy); Barnett, 31 F.3d at 816-17 ("California Law provides an adequate post-deprivation remedy for any property deprivations."). Consequently, plaintiff's due process claim is dismissed.
Accordingly, the court hereby ORDERS that this action is dismissed for plaintiff's failure to state a claim. See 28 U.S.C. § 1915A; see also Lopez v. Smith, 203 F.3d 1122, 1128 (9th Cir. 2000) (indigent prisoner proceeding without counsel must be given leave to file amended complaint unless the court can rule out any possibility that the plaintiff could state a claim).
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