United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. On March 28, 2019, the
court screened plaintiff's complaint, deemed it
deficient, and dismissed it with leave to amend. ECF No. 10.
He has filed an amended complaint (ECF No. 11) and the court
must screen it.
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 where 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).
“[A] judge may dismiss [in forma pauperis] claims which
are based on indisputably meritless legal theories or whose
factual contentions are clearly baseless.” Jackson
v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation
and internal quotations omitted), superseded by statute
on other grounds as stated in Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at
327. The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
Rule of Civil Procedure 8(a)(2) 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 Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). However, 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. (citations omitted). “[T]he
pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.” Id.
(alteration in original) (quoting 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 1216 (3d ed. 2004)).
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Bell Atl. Corp., 550 U.S. at 556). In reviewing a
complaint under this standard, the court must accept as true
the allegations of the complaint in question, Hospital
Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976),
as well as construe the pleading in the light most favorable
to the plaintiff and resolve all doubts in the
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969).
allegations of the amended complaint do not materially differ
from those in the original. Plaintiff again alleges that
defendant assured plaintiff's former cellmate he would
ship plaintiff's personal property to plaintiff but
instead stole the property and claimed that plaintiff's
cellmate had donated it. ECF No. 11. Like the original
allegations, the amended allegations are not sufficient to
survive screening. A deprivation of personal property is not
actionable as a due process claim under section 1983 where
the deprivation is the result of random and unauthorized
action (as opposed to an established state procedure), and
the state provides an adequate post-deprivation remedy.
Hudson v. Palmer, 468 U.S. 517, 532-33 (1984).
California provides an adequate post-deprivation remedy
through its Government Claims Act. Barnett v.
Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (per
curiam). As there is no cognizable federal claim, the amended
complaint cannot survive screening and must be dismissed.
court has already afforded plaintiff a chance to amend his
complaint and, having done so, he is no closer to stating a
cognizable claim. Consequently, it declines to offer him
further opportunity to amend. See McGlinchy v. Shell
Chemical Co., 845 F.2d 802, 809-10 (9th Cir. 1988)
(“Repeated failure to cure deficiencies by amendments
previously allowed is another valid reason for a district
court to deny a party leave to amend.”).
it is RECOMMENDED that plaintiff's amended complaint (ECF
No. 11) be DISMISSED without leave to amend for failure to
state a cognizable ...