United States District Court, E.D. California
MICHAEL L. OVERTON, Plaintiff,
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding pro se. He seeks relief
pursuant to 42 U.S.C. § 1983, and requests leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
This action was referred to this court by Local Rule 302
under 28 U.S.C. § 636(b)(1). As discussed below, the
court recommends that this action and his motion be dismissed
as frivolous; because amendment is futile, plaintiff's
request to proceed in forma pauperis should be denied.
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. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous when it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989), superseded by statute as stated in Lopez
v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)
(“[A] judge may dismiss [in forma pauperis] claims
which are based on indisputably meritless legal theories or
whose factual contentions are clearly baseless.”);
Franklin, 745 F.2d at 1227.
8(a)(2) of the Federal Rules of Civil Procedure
“requires only ‘a short and plain statement of
the claim showing that the pleader is entitled to relief,
' in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.'” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). In order to survive dismissal for
failure to state a claim, a complaint must contain more than
“a formulaic recitation of the elements of a cause of
action;” it must contain factual allegations sufficient
“to raise a right to relief above the speculative
level.” Id. at 555. However, “[s]pecific
facts are not necessary; the statement [of facts] need only
‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.'”
Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Bell Atlantic, 550 U.S. at 555, citations
and internal quotations marks omitted). In reviewing a
complaint under this standard, the court must accept as true
the allegations of the complaint in question,
Erickson, 551 U.S. at 93, and construe the pleading
in the light most favorable to the plaintiff. Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), overruled on other
grounds, Davis v. Scherer, 468 U.S. 183 (1984).
initial filing, plaintiff seeks to recover the sum of $10,
000, 005.88, plus interest, from checks drawn on the Bank of
Houston in 2007, apparently alleging the checks were stolen
from him. (ECF No. 1 at 1-2.) Shortly after such filing,
plaintiff filed a motion for preliminary injunction based on
the same claim, alleging the first of four checks was in
2007, and he seeks interest in the amount of $16, 340.34.
Plaintiff claims he was transferred with the checks being
held at CMF in a drawer, and “is substantiated by the
judges' truth machine.” (ECF No. 4 at 2.)
United States Supreme Court has held that “an
unauthorized intentional deprivation of property by a state
employee does not constitute a violation of the procedural
requirements of the Due Process Clause of the Fourteenth
Amendment if a meaningful postdeprivation remedy for the loss
is available.” Hudson v. Palmer, 468 U.S. 517,
533 (1984). Thus, where the state provides a meaningful
postdeprivation 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).
instant case, plaintiff has not alleged any facts which
suggest that the deprivation was authorized. The California
Legislature has provided a remedy for tort claims against
public officials in the California Government Code,
§§ 900, et seq. Because plaintiff has not
attempted to seek redress in the state system, he cannot sue
in federal court on the claim that the state deprived him of
property without due process of the law. The court concludes
that this claim must, therefore, be dismissed as frivolous.
See 28 U.S.C. § 1915(e)(2). Because the motion
for injunctive relief is based on the same claim,
plaintiff's motion should also be denied.
plaintiff cannot state a cognizable civil rights claim based
on allegations that checks were stolen or went missing, it
would be futile to allow plaintiff to amend his pleading. In
light of the futility of amendment in this action, the court
declines to impose the filing fee associated with
plaintiff's in forma pauperis application.
accordance with the above, IT IS HEREBY ORDERED that the
Clerk of the Court is directed to assign a district judge to