(PC) Mitchell v. Piffer ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL MITCHELL, No. 2:18-cv-2949-WBS-EFB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 PIFFER, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. On March 28, 2019, the court screened plaintiff’s complaint, deemed it deficient, 19 and dismissed it with leave to amend. ECF No. 10. He has filed an amended complaint (ECF 20 No. 11) and the court must screen it. 21 Screening 22 I. Legal Standards 23 The court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 26 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 28 ///// 1 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 3 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 4 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 5 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 6 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 7 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 8 has an arguable legal and factual basis. Id. 9 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 10 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 11 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 12 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 13 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 14 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 15 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 16 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 17 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 18 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d 19 ed. 2004)). 20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 21 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 22 Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content 23 that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 25 under this standard, the court must accept as true the allegations of the complaint in question, 26 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 27 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 28 McKeithen, 395 U.S. 411, 421 (1969). 1 II. Analysis 2 The allegations of the amended complaint do not materially differ from those in the 3 original. Plaintiff again alleges that defendant assured plaintiff’s former cellmate he would ship 4 plaintiff’s personal property to plaintiff but instead stole the property and claimed that plaintiff’s 5 cellmate had donated it. ECF No. 11. Like the original allegations, the amended allegations are 6 not sufficient to survive screening. A deprivation of personal property is not actionable as a due 7 process claim under section 1983 where the deprivation is the result of random and unauthorized 8 action (as opposed to an established state procedure), and the state provides an adequate post- 9 deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 532-33 (1984). California provides an 10 adequate post-deprivation remedy through its Government Claims Act. Barnett v. Centoni, 31 11 F.3d 813, 816-17 (9th Cir. 1994) (per curiam). As there is no cognizable federal claim, the 12 amended complaint cannot survive screening and must be dismissed. 13 Leave to Amend 14 The court has already afforded plaintiff a chance to amend his complaint and, having done 15 so, he is no closer to stating a cognizable claim. Consequently, it declines to offer him further 16 opportunity to amend. See McGlinchy v. Shell Chemical Co., 845 F.2d 802, 809-10 (9th Cir. 17 1988) (“Repeated failure to cure deficiencies by amendments previously allowed is another valid 18 reason for a district court to deny a party leave to amend.”). 19 Conclusion 20 Accordingly, it is RECOMMENDED that plaintiff’s amended complaint (ECF No. 11) be 21 DISMISSED without leave to amend for failure to state a cognizable claim and the Clerk be 22 directed to close the case. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 28 ///// 1 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 3 || Dated: November 19, 2019. 4 tid, PDEA 5 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28