United States District Court, E.D. California
ORDER DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO
STATE A COGNIZABLE CLAIM FOR RELIEF ORDER THAT THIS DISMISSAL
SHALL COUNT AS A STRIKE PURSUANT TO 28 U.S.C. § 1915(G)
(ECF NO. 12)
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Diane Asbury (“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. (ECF No. 5.)
Plaintiff's second amended complaint, filed December 14,
2016, is currently before the Court for screening. (ECF No.
Screening Requirement and Standard
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
(2); 28 U.S.C. § 1915(e)(2)(B)(ii).
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)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a
plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted).
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted). To survive
screening, Plaintiff's claims must be facially plausible,
which requires sufficient factual detail to allow the Court
to reasonably infer that each named defendant is liable for
the misconduct alleged, Iqbal, 556 U.S. at 678, 129
S.Ct. at 1949 (quotation marks omitted); Moss v. United
States Secret Service, 572 F.3d 962, 969 (9th Cir.
2009). The sheer possibility that a defendant acted
unlawfully is not sufficient, and mere consistency with
liability falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949
(quotation marks omitted); Moss, 572 F.3d at 969.
is currently incarcerated at Century Regional Detention
Facility. The events in the complaint are alleged to have
occurred while Plaintiff was incarcerated at Central
California Woman's Facility (CCWF), in Chowchilla and in
Los Angeles County. Plaintiff names the following defendants:
California Department of Corrections and Rehabilitation;
County of Los Angeles; Los Angeles County Sheriff's
Department; Leroy David Baca, L.A. County Sheriff; D.K.
Johnson, CCWF Warden; Officer A. Gaona; Sergeant A.B. Flores;
Sergeant B. Fortner; Century Regional Detention Facility.
alleges as follows: Plaintiff was deprived of property
without due process. Plaintiff complains that the policy of
delaying transferring an inmate's funds for up to 30 days
after the inmate is transferred resulted in a $0 balance in
her account. When she arrived at her institution with a $0
balance in her trust account, the “trash, donate, or
mail home” policy was triggered. The delay in transfer
of funds meant that she could only “donate” and
was forced to donate her property. The delayed fund
transferring policy deprived plaintiff of her property.
Plaintiff alleges that Los Angeles Sheriff's Department,
LA County and CDCR should have known the delayed transfer of
funds would prevent inmates' ability to shop or send
property home. Plaintiff alleges that the State's failure
to provide disciplinary guidelines of receiving departments
resulted in bullying of inmates and no right of appeal.
Plaintiff alleges that the seizure and discarding of
Plaintiff's drawings and manuscript by Officer Gaona
violated Plaintiff's Fifth Amendment rights.
alleges that her right to effective counsel was violated by
Officer Gaona's search, review, seizure and discard of
what Plaintiff states was her legal material. Plaintiff
alleges that whatever Gaona felt was “not legal”
material was discarded. Plaintiff alleges that Officer Gaona
would not allow her to speak, which was a violation of
Plaintiff First Amendment right and is an assault. Plaintiff
complains that Officer Gaona discarded her papers without any
training or insight into her case or medical issues or what
was important before it was discarded. She alleges that
officers in receiving were not given necessary trainings and
disciplinary actions. Plaintiff seeks an injunction to stop
the practice of delay fund transfer and the “trash,
donate, or mail home” practices. Plaintiff also asks
for compensatory and punitive damages.
Civil Rights Act under which this action was filed provides:
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.
U.S.C. § 1983. The statute plainly 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
Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598,
46 L.Ed.2d 561 (1976). The Ninth Circuit has held that
“[a] person ‘subjects another to the deprivation
of a constitutional right, within the meaning of section
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).
was previously informed, but continues to fail to link each
of the defendants to any constitutional violation. Plaintiff
alleges only what ...