Arellano v. California Department of Corrections & Rehabilitation , 693 F. App'x 615 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL ARELLANO, No. 16-56797
Plaintiff-Appellant, D.C. No. 3:15-cv-02300-AJB-JMA
v.
MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
California state prisoner Raul Arellano appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various
constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
novo. Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012) (dismissal under
28 U.S.C. § 1915A); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012)
(dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We may affirm on any basis
supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.
2008). We affirm in part, vacate in part, and remand.
The district court properly dismissed Arellano’s due process claim based on
deprivation of property because Arellano had an adequate postdeprivation remedy
under California law. See Hudson v. Palmer, 468 U.S. 517, 533 (1984)
(“[D]eprivation 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.”);
Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (“California [l]aw provides
an adequate post-deprivation remedy for any property deprivations.”).
The district court properly dismissed Arellano’s due process claim alleging
improper processing of grievances because Arellano “lack[s] a separate
constitutional entitlement to a specific prison grievance procedure.” Ramirez v.
Galaza, 334 F.3d 850, 860 (9th Cir. 2003).
The district court properly dismissed Arellano’s access-to-courts claim
because Arellano did not allege facts sufficient to show that he suffered actual
prejudice with respect to contemplated or existing litigation. See Lewis v. Casey,
2 16-56797
518 U.S. 343, 348-55 (1996) (requiring factual allegations showing actual injury in
order to state an access-to-courts claim).
Dismissal was proper regarding Arellano’s claim that he was denied
telephone access because the facts alleged do not demonstrate that defendants
denied him telephone access. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir.
1996) (existence of First Amendment right of telephone access for prisoners).
Although not addressed in the order dismissing Arellano’s action, dismissal
of Arellano’s retaliation and conspiracy claims was proper against all defendants
except defendant Olson because Arellano did not allege facts sufficient to state a
plausible claim for relief. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.
2010) (although pro se pleadings are to be construed liberally, a plaintiff must
present factual allegations sufficient to state a plausible claim for relief); Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth elements of a § 1983
claim for retaliation in the prison context); Buckey v. County of Los Angeles, 968
F.2d 791, 794 (9th Cir. 1992) (specific facts must be alleged to “support the
existence of a conspiracy among the defendants”).
However, dismissal of Arellano’s retaliation claim against defendant Olson
was premature because Arellano alleged that Olson denied Arellano’s appeal in
retaliation for Arellano filing grievances. This allegation, liberally construed, is
3 16-56797
“sufficient to warrant ordering [this defendant] to file an answer.” Wilhelm, 680
F.3d at 1116.
We reject as without merit Arellano’s contention that deprivation of his
property constitutes atypical and significant hardship.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
In sum, we vacate the dismissal of Arellano’s retaliation claim as to
defendant Olson, and remand for further proceedings as to this claim only. We
affirm the dismissal of all other claims.
AFFIRMED in part, VACATED in part, and REMANDED.
4 16-56797