The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel, who seeks relief pursuant to 42 U.S.C. § 1983, and requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). However, because this action must be dismissed without prejudice, for the reasons set forth below, the court also denies without prejudice plaintiff's motion to proceed in forma pauperis.
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).
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 when 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 See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); 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)). 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." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Plaintiff, who is currently incarcerated at California State Prison-Solano ("CSPSOL"), alleges that he was "adversely transferred" from CMF to CSP-SOL on January 18, 2012. (Dkt. No. 1 at 3.) Plaintiff states that he is diabetic and has "P.A.D." (peripheral artery disease) and "R.L.S." (restless leg syndrome). Plaintiff alleges that he does "not get anywhere near the medical treatment I was getting at CMF," which has caused plaintiff to "have more injuries because of non-treatment." (Id.) These problems include "waking up in a[n] emergency room at CSP Solano in a diabetic coma;" walking long distances in inclement weather (plaintiff states that, at CMF, his meals were brought to him); and the inability to obtain toothpaste for his sensitive teeth, previously prescribed by a CMF dentist. Plaintiff also alleges that his property was confiscated by CMF staff, and that plaintiff continues to be deprived of his "personal TV, hot pot, religious cross, headphone, and my big cooking bowl, two quart water container which I had for years. Plus all my connectors and three (3) different length cables." (Id. at 5-6.) Plaintiff contends that these conditions are causing him significant mental distress. Plaintiff seeks the return of his property, and $455,000 damages. Plaintiff states that his 602 appeal (challenging his past and pending transfers, and the confiscation of his property) is still pending but, because plaintiff has now been "reclassified for another transfer," he filed this action because he was concerned that his current appeal would become "null and void." (Dkt. No. 1 at 5.)
Plaintiff names as defendants the California Medical Facility, as well as "CMF Custody Staff, Third Floor, Counselor to Captain," "CMF R&R Staff, Officers to Sgt. CMF Medical & Psych.," and "CSP Solano Medical Staff, Social Worker, psychotherapist, psychologist, nurses and doctors." (Dkt. No. 1 at 2-3.)
Several problems beset the complaint. Most significantly, plaintiff concedes that he did not exhaust his administrative remedies before initiating this action. The Prison Litigation Reform Act ("PLRA") requires that a prisoner exhaust his available administrative remedies before bringing a federal civil rights action. See 42 U.S.C. § 1997e(a); Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005); Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). The district court must dismiss an action where it is clear from the face of the complaint that plaintiff failed to exhaust his administrative remedies prior to filing suit. 42 U.S.C. § 1997e(a); McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam); Wyatt v. Terhune, 315 F.3d 1108, 1120 ("A prisoner's concession to nonexhaustion is a valid grounds for dismissal. . . ."); see also Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).
In the present case, it is clear from the face of the complaint that plaintiff did not exhaust his administrative remedies before initiating this action. While the PLRA does not require exhaustion when circumstances render administrative remedies "effectively unavailable," Sapp v. Kimbrell, 623 F.3d 813 (9th Cir. 2010), plaintiff does not make this assertion. Rather, plaintiff states that he intentionally initiated this action before exhausting his administrative remedies because he was concerned that he would be transferred to another institution before CSP-SOL completed review of his appeal. Plaintiff's failure to exhaust the underlying appeal is underscored by plaintiff's supplemental filing (see Dkt. No. 9), which contains, inter alia, a Second Level Response to the appeal, dated August 16, 2012 (see id. at 9), more than a month after plaintiff filed his complaint. For these reasons, plaintiff's complaint and this action must be dismissed without prejudice. Once plaintiff receives the Director's Level Response to his appeal, he may file a new action in federal court.
The following is provided as guidance should plaintiff choose to file a new complaint in a new action, after exhaustion of his administrative remedies.
First, the alleged circumstances underlying the confiscation and retention of plaintiff's property are too vague to ascertain whether plaintiff can state a potentially cognizable due process claim. 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). Only an authorized, intentional deprivation of property -- one carried out pursuant to established state procedures, regulations, or statutes -- may constitute an ...