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Asbury v. Brown

United States District Court, E.D. California

May 8, 2017

DIANE ASBURY, Plaintiff,
v.
EDMUND G. BROWN, Defendants.

          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

         Plaintiff 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. 12.)

         I. Screening Requirement and Standard

         The 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).

         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)(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).

         Prisoners 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.

         II. Plaintiff's Allegations

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Deficiencies of Complaint

         A. Linkage Requirement

         The Civil Rights Act under which this action was filed provides:

         Every 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.

         42 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).

         Plaintiff was previously informed, but continues to fail to link each of the defendants to any constitutional violation. Plaintiff alleges only what ...


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