(PC) Hernandez v. Mule Creek State Prison ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PABLO HERNANDEZ, No. 2:20-cv-0817 KJN P 12 Plaintiff, 13 v. ORDER 14 MULE CREEK STATE PRISON, 15 Defendant. 16 17 Plaintiff, a state prisoner at Mule Creek State Prison, filed copies of administrative 18 grievances regarding missing property.1 No other pleadings have been filed by the plaintiff. 19 In order to commence an action, plaintiff must file a complaint as required by Rule 3 of 20 the Federal Rules of Civil Procedure, and plaintiff must either pay the required filing fee or file an 21 application requesting leave to proceed in forma pauperis.2 See 28 U.S.C. §§ 1914(a), 1915(a). 22 1 Plaintiff is advised that the United States Supreme Court has held that “an unauthorized 23 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 24 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 25 deprivations constitute actionable violations of the Due Process Clause. An authorized deprivation is one carried out pursuant to established state procedures, regulations, or statutes. 26 Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 27 832 F.2d 1142, 1149 (9th Cir. 1987). The California Legislature provides a remedy for tort claims against public officials in the California Government Code, §§ 900, et seq. 28 42.42U UV VVOLICINVIN MYVVULLIOCEEL Sr PHM Vero rPaywt evre 1 | The court will not issue any orders granting or denying relief until an action has been properly 2 | commenced. Plaintiff is provided the opportunity to file his complaint, and to submit an 3 | application requesting leave to proceed in forma pauperis or to submit the appropriate filing fee. 4 || In the alternative, plaintiff may request that this action be dismissed.? Fed. R. Civ. P. 41(a). 5 In accordance with the above, IT IS HEREBY ORDERED that: 6 1. Plaintiff is granted thirty days from the date of service of this order to file a request to 7 | voluntarily dismiss this case, or to file a complaint that complies with the requirements of the 8 | Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the 9 | complaint must bear the docket number assigned this case; plaintiff must file an original and two 10 | copies of the complaint. If plaintiff chooses to file a complaint, he shall also submit, within thirty 11 | days from the date of this order, the application to proceed in forma pauperis on the form 12 | provided by the Clerk of Court, or the filing fee in the amount of $400.00." 13 Plaintiffs failure to comply with this order will result in a recommendation that this 14 | matter be dismissed. 15 2. The Clerk of the Court is directed to send plaintiff the court’s form for filing a civil 16 | rights action, and the application to proceed in forma pauperis by a prisoner. 17 | Dated: April 30, 2020 18 EF \ 4h) /hern0817.nocompl □□ Acre 19 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 20 | ? If leave to file in forma pauperis is granted, plaintiff will still be required to pay the filing fee > but will be allowed to pay it in installments. 3 Title 28 U.S.C. § 1915(g) provides: “In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior 23 | occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 24 | aclaim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C.A. § 1915(g). Given the three “strikes” provision of § 1915(g), 25 plaintiff is given the opportunity to decide whether or not he wishes to assume the risk of 26 | incurring a potential § 1915(g) “strike” based on the subject-matter of the grievances provided. 27 || + The $400.00 is comprised of the $350.00 filing fee and a $50.00 administrative fee. If plaintiff is granted leave to proceed in forma pauperis, plaintiff is not required to pay the $50.00 28 | administrative fee.