United States District Court, E.D. California
M. COTA, UNITED STATES MAGISTRATE JUDGE
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court
is plaintiff's first amended complaint (ECF No. 8).
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). The court must dismiss a complaint or
portion thereof if it: (1) is frivolous or malicious; (2)
fails to state a claim upon which relief can be granted; or
(3) seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. § 1915A(b)(1), (2).
Moreover, the Federal Rules of Civil Procedure require that
complaints contain a “. . . short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). This means that claims
must be stated simply, concisely, and directly. See
McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996)
(referring to Fed.R.Civ.P. 8(e)(1)). These rules are
satisfied if the complaint gives the defendant fair notice of
the plaintiff's claim and the grounds upon which it
rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th
Cir. 1996). Because plaintiff must allege with at least some
degree of particularity overt acts by specific defendants
which support the claims, vague and conclusory allegations
fail to satisfy this standard. Additionally, it is impossible
for the court to conduct the screening required by law when
the allegations are vague and conclusory.
names the following as defendants: (1) Silva; (2) Joksch; and
(3) Bradett. By separate order, the court has
determined service of this action is appropriate for
defendants Joksch and Bradett on plaintiff's First
Amendment retaliation claims. As to defendant Silva,
Petitioner arrived at High Desert State Prison on July 8,
2014. Petitioner received his property on July 22, 2014,
which was issued by C/O Silva. Upon receiving my property I
was told that I couldn't have any portraits/drawings and
I was given 3 days to have money placed in my inmate trust
account to have the portraits/drawings sent home. Petitioner
had the money placed in his account as he was asked to do.
However, petitioner's portraits/drawings were still
destroyed. Petitioner is a published author and the
portraits/drawings were to be used for promoting his book and
ECF No. 8, pg. 3.
alleges violation of his due process rights with respect to
his property. See id.
prisoner alleges the deprivation of a property interest
caused by the random and unauthorized action of a prison
official, there is no claim cognizable under 42 U.S.C. §
1983 if the state provides an adequate post-deprivation
remedy. See Zinermon v. Burch, 494 U.S. 113, 129-32
(1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984).
A state's post-deprivation remedy may be adequate even
though it does not provide relief identical to that available
under § 1983. See Hudson, 468 U.S. at 531 n.11.
A due process claim is not barred, however, where the
deprivation is foreseeable and the state can therefore be
reasonably expected to make pre-deprivation process
available. See Zinermon, 494 U.S. at 136-39. An
available state common law tort claim procedure to recover
the value of property is an adequate remedy. See id.
case, plaintiff alleged the unauthorized destruction of his
property by defendant Silva. Because California provides an
adequate post-deprivation remedy, plaintiff's claim is
not cognizable under § 1983 and defendant Silva should
it does not appear possible that the deficiencies identified
herein can be cured by amending the complaint, plaintiff is
not entitled to leave to amend prior to dismissal of the
entire action. See Lopez v. Smith, 203 F.3d 1122,
1126, 1131 (9th Cir. 2000) (en banc).
on the foregoing, the undersigned recommends that defendant