United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL
OF ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF
[ECF NO. 7]
Walter Comminey is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff has not consented or declined to United States
Magistrate Judge jurisdiction; therefore, this action was
referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302.
before the Court is Plaintiff's first amended complaint,
filed May 5, 2017.
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 “fails to state a claim on
which relief may be granted, ” or that “seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
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 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff must demonstrate that each named defendant
personally participated in the deprivation of his rights.
Iqbal, 556 U.S. at 676-677; Simmons v. Navajo
County, Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
proceeding pro se in civil rights actions are still entitled
to have their pleadings liberally construed and to have any
doubt resolved in their favor, but the pleading standard is
now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121
(9th Cir. 2012) (citations omitted), and 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 678-79;
Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th
Cir. 2009). The “sheer possibility that a defendant has
acted unlawfully” is not sufficient, and “facts
that are ‘merely consistent with' a defendant's
liability” falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678; Moss, 572
F.3d at 969.
officer Hopkins placed Plaintiff's box of court
transcripts in building six dining room “property
closet, ” and assured Plaintiff that it would be taken
to receiving and release (R&R) to be mailed out on
Plaintiff's behalf. After two weeks, the property was
still in building six “property closet, ” and it
was subsequently sent to R&R by officer Sumpter.
Plaintiff filed a request for interview regarding the status
of his property. Plaintiff was informed that the property was
on Sumpter's shelf and it could not be mailed out, so
Plaintiff requested it back. Plaintiff was assured that it
would be sent soon as the officer would pick it up. Plaintiff
never received the property. Plaintiff continued to file
inmate grievances regarding the return of his property.
Plaintiff contends he is entitled to compensation for the
negligent loss of his property.
Due Process-Property Deprivation
alleges a claim under the Due Process Clause of the
Fourteenth Amendment, which protects prisoners from being
deprived of property without due process of law, Wolff v.
McDonnell, 418 U.S. 539, 556 (1974). “Due process
protections extend only to deprivations of protected
interests.” Shinault v. Hawks, 782 F.3d 1053,
1057 (9th Cir. 2015) (citing Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 569-70 (1972). However,
while an authorized, intentional deprivation of property is
actionable under the Due Process Clause, see Hudson v.
Palmer, 468 U.S. 517, 532, n.13 (1984) (citing Logan
v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982));
Quick, 754 F.2d at 1524, “[a]n unauthorized
intentional deprivation of property by a state employee does