United States District Court, N.D. California
ORDER OF DISMISSAL WITH LEAVE TO AMEND
THELTON E. HENDERSON United States District Judge.
an inmate at San Quentin State Prison, filed this pro
se civil rights action under 42 U.S.C. § 1983.
Plaintiff has paid the filing fee. His complaint is now
before the Court for initial screening pursuant to 28 U.S.C.
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).
Pleadings filed by pro se litigants, however, must be
liberally construed. Hebbe v. Pliler, 627 F.3d 338,
342 (9th Cir. 2010); Balistreri v. Pacifica Police
Dep’t., 901 F.2d 696, 699 (9th Cir. 1990).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person
acting under the color of state law. West v. Atkins,
487 U.S. 42, 48 (1988).
presents various allegations regarding his time in prison
including the confiscation of property.
the alleged negligent nor intentional deprivation of property
states a due process claim under § 1983 if the
deprivation was random and unauthorized. Parratt v.
Taylor, 451 U.S. 527, 535-44 (1981) (state employee
negligently lost prisoner's hobby kit), overruled in
part on other grounds, Daniels v. Williams, 474
U.S. 327, 330-31 (1986); Hudson v. Palmer, 468 U.S.
517, 533 (1984) (intentional destruction of inmate's
property). The availability of an adequate state
post-deprivation remedy, e.g. a state tort action, precludes
relief because it provides adequate procedural due process.
King v. Massarweh, 782 F.2d 825, 826 (9th Cir.
1986). California law provides an adequate post-deprivation
remedy for any property deprivations. Barnett v.
Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing
Cal. Gov't Code §§ 810-895).
difficult to discern the exact nature of Plaintiff’s
allegations. He states that correctional officers confiscated
his headphones and perhaps his television. He also describes
improper medical care from 1993 to 2000 at California Medical
Facility in Vacaville and at U.C. Davis Hospital. He also
states that computers are disrupting his bodily functions.
allegations fail to state a claim; therefore the complaint is
dismissed with leave to amend. With respect to the
deprivation of property, Plaintiff must address the
post-deprivation remedy provided by the state.
Plaintiff’s medical claims appear time barred and
occurred in the Eastern District of California.
Plaintiff’s remaining allegations are frivolous. If
Plaintiff files an amended complaint he must identify the
specific defendants and describe how they violated his
foregoing reasons, the Court hereby orders as follows:
Plaintiff’s Complaint is DISMISSED WITH LEAVE TO FILE A
FIRST AMENDED COMPLAINT, within twenty-eight days containing
all related claims against all Defendants that Plaintiff
wishes to proceed against in this action. The pleading must
be simple, concise and direct and must state clearly and
succinctly how each and every Defendant is alleged to have
violated Plaintiff’s federally-protected rights.
See Leer, 844 F.2d at 634. The pleading must include
the caption and civil case number used in this order and the
words COURT ORDERED FIRST AMENDED COMPLAINT on the first
page. Plaintiff is advised that he must file all of his
claims in one complaint and not present them piecemeal to the
Court in various letters and other documents. Failure to file
a proper First Amended Complaint within twenty-eight days of
this order will result in the dismissal of this action.
Plaintiff is advised that the First Amended Complaint will
supersede the original Complaint and all other pleadings.
Claims and defendants not included in the First Amended
Complaint will not be considered by the Court. See Lacey
v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en
banc) ("For claims dismissed with prejudice and without
leave to amend, we will not require that they be repled in a
subsequent amended complaint to preserve them ...