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Steven C. Jenkins v. J. Urbina

March 7, 2013

STEVEN C. JENKINS,
PLAINTIFF,
v.
J. URBINA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (ECF No. 1)

Screening Order

I. Screening Requirement

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 has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).

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

Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at Ironwood State Prison, brings this civil rights action against defendant correctional officials employed by the CDCR at Kern Valley State Prison in Delano. Plaintiff names Correctional Officer J. Urbina and Appeals Coordinator D. Tarnoff. The events at issue occurred while Plaintiff was housed at Kern Valley. Plaintiff sets forth claims of deprivation of property, equal protection violation, and First Amendment violation.

Plaintiff alleges that on October 18, 2009, he was placed in Administrative Segregation (AdSeg), and therefore separated from his property. C/O Urbina packed and inventoried Plaintiff's property, and asked Plaintiff to sign the inventory form. Plaintiff refused to sign the form "due to the fact that Jenkins knew by reading the form that there was property not recorded properly on the said form."

Plaintiff was released from AdSeg on March 15, 2010. Two days later, when he received his property, he discovered that certain items of his property were missing. Plaintiff made "several" informal attempts to get his property back, and finally filed an inmate grievance on March 28, 2010. Appeals Coordinator Tarnoff screened out the appeal as untimely. The regulations require an appeal to be filed within fifteen days. Plaintiff alleges that Tarnoff "acted outside of his/her authority" in screening out Plaintiff's appeal, as it was filed eleven days after March 17, 2010, the date that Plaintiff discovered that his items were missing.

Plaintiff re-submitted his grievance, indicating that he was indeed within the appropriate time frame. Tarnoff again screened out the appeal as untimely. Plaintiff contends that Tarnoff's actions "can only be construed as a dereliction of duty, an intentional obstruction of justice, an intentional obstruction of Jenkins right to seek redress, an obstruction whether intentional or not."

Plaintiff is of Native American descent. Plaintiff alleges that part of the property that was unlawfully confiscated consisted of spiritual items - beads, beading needles, beading thread, feathers, leather, eagle war choker, and 2 medicine bags.

A. Property

Where a prisoner challenges the deprivation of a liberty or property interest, caused by the unauthorized negligent or intentional action of a prison official, the prisoner cannot state a constitutional claim where the state provides an adequate post-deprivation remedy. See Zinermon v. Burch, 494 U.S. 113, 129-30 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam); Raditch v. United States, 929 F.2d 478, 481 (9th Cir. 1991); Taylor v. Knapp, 871 f.2d 803, 805 (9th Cir. 1989). This rule applies to the Fifth Amendment's Due Process Clause as well. Raditch, 929 F.2d at 481. 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. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). Here, Plaintiff has not alleged any facts which suggest that the deprivation of his ...


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