(PC) Jackson v. Harmon ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHAZZ ANDRE JACKSON, ) Case No.: 1:21-cv-00143-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 J. HARMON, ) ) FINDINGS AND RECOMMENDATIONS 15 Defendant. ) RECOMMENDING DISMISSAL OF THE ) ACTION FOR FAILURE TO STATE A 16 ) COGNIZABLE CLAIM FOR RELIEF ) 17 ) 18 Plaintiff Chazz Andre Jackson is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s complaint, filed February 4, 2021. 21 I. 22 SCREENING REQUIREMENT 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 Court 25 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 26 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 27 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 28 U.S.C. § 1915A(b). 1 A complaint must contain “a short and plain statement of the claim showing that the pleader is 2 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 4 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 5 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 6 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 7 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 8 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 9 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 10 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 11 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 12 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 13 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 14 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 15 II. 16 COMPLAINT ALLEGATIONS 17 Correctional officer J. Harmon failed to inventory and store Plaintiff’s personal property upon 18 his placement in work/privilege group C on October 2, 2019. 19 Plaintiff was moved to Facility C Building 4 with all of his personal property, after being 20 designed work/privilege group C. Plaintiff’s person was not searched nor was his disallowable 21 personal property stored away for safe keeping by officer J. Harmon. The day Plaintiff moved into 22 Building 4, he verbally requested J. Harmon inventory and store his disallowable property away until 23 Plaintiff’s time on work group C was over. However, Plaintiff’s effort was to no avail. J. Harmon 24 maliciously ignored Plaintiff’s pleas to comply with CDCR’s procedure to store away his personal 25 property. 26 On December 19, 2019, an incident occurred at Kern Valley State Prison involving Plaintiff 27 and officer J. Harmon. As a result of the incident, Plaintiff was placed in a secure holding cell and 28 search by staff. Plaintiff’s cell was also searched out of his presence by officer A. Licea. Licea them 1 completed and signed a CDCR 1083 form “Inmate Property Inventory Sheet,” which Plaintiff refused 2 to sign. Plaintiff refused to sign because he noticed multiple items that were in his cell with him prior 3 to the incident on December 19, 2019, were not indicated on the completed 1083 form. The 1083 4 form also contradicted Plaintiff’s listed possessions on his CDCR 160-H property card on file at the 5 time of the incident. 6 On December 26, 2019, Plaintiff filed an inmate appeal and claimed that his property was 7 missing and/or destroyed and that officer J. Harmon was responsible. 8 On February 18, 2020, Plaintiff’s appeal was denied, but it was noted that J. Harmon erred in 9 failing to inventory and stored Plaintiff’s personal property on the day he was reclassified to work 10 group C, i.e. October 2, 2019. 11 On July 10, 2020, Plaintiff’s appeal was denied at the third and final level of review. 12 Plaintiff contends that J. Harmon failed to inventory and store his disallowable property 13 pursuant to established procedure as set forth in California Code of Regulations, title 15, section 3190. 14 III. 15 DISCUSSION 16 A. Loss of Personal Property 17 Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 728, 18 730 (9th Cir. 1974). An authorized, intentional deprivation of property is actionable under the Due 19 Process Clause; see Hudson v. Palmer, 468 U.S. 517, 532, n. 13 (1984) (citing Logan v. Zimmerman 20 Brush Co., 455 U.S. 422, 435–36 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), 21 however, “an unauthorized intentional deprivation of property by a state employee does not constitute 22 a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if 23 a meaningful postdeprivation remedy for the loss is available,” Hudson, 468 U.S. at 533. 24 Plaintiff complains that Defendant J. Harmon failed to inventory his property pursuant to 25 established state procedure which resulted in the loss and/or destruction of his personal property. 26 However, Plaintiff has no cognizable due process claim with respect to Defendant Harmon’s 27 allegedly unauthorized deprivation of his personal property, whether intentional or negligent, since a 28 meaningful state post-deprivation remedy for his loss is available to him. See Hudson, 468 U.S. at 1 533. California's tort claim process provides that adequate post-deprivation remedy. Barnett v. 2 Centoni, 31 F.3d at 813, 816-17 (9th Cir. 1994) (“[A] negligent or intentional deprivation of a 3 prisoner's property fails to state a claim under section 1983 if the state has an adequate post 4 deprivation remedy.”); see also Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1120 (S.D. Cal. 2007); 5 Kemp v. Skolnik, No. 2:09-CV-02002-PMP, 2012 WL 366946, at *6 (D. Nev. Feb. 3, 2012) (finding 6 prisoner's alleged loss or destruction of newspaper, magazines, and books failed to state a Fourteenth 7 Amendment claim pursuant to Hudson and noting that “[i]f Plaintiff wishes to recoup the value of the 8 alleged lost materials, he will have to file a claim in small claims court in state court.”). 9 B. Leave to Amend 10 A pro se litigant is entitled to receive notice of the deficiencies in the complaint and an 11 opportunity to amend before dismissal with prejudice is appropriate, unless the deficiencies cannot be 12 cured by amendment. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (en banc ). 13 Plaintiff's allegations involve an allegedly negligent or intentional failure to inventory his 14 personal property, which resulted in its unauthorized deprivation. Because such a claim is not 15 cognizable under section 1983, leave to amend would be futile and shall be denied. Akhtar v. Mesa, 16 698 F.3d 1202, 1212-13 (9th Cir. 2012) (leave to amend would be futile and need not be granted as the 17 defects in his pleading are not capable of being cured through amendment.) 18 IV. 19 CONCLUSION AND RECOMMENDATION 20 For the reasons stated above, Plaintiff fails to state a cognizable claim for relief and leave to 21 amend would be futile. 22 Accordingly, it is HEREBY ORDERED that the Clerk of Court shall randomly assign a 23 District Judge to this action. 24 Further, it is HEREBY RECOMMENDED that the instant action be dismissed for failure to 25 state a cognizable claim for relief. 26 This Findings and Recommendation will be submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 28 days after being served with this Findings and Recommendation, Plaintiff may file written objections 1 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 2 || Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 3 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 4 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 || IT IS SO ORDERED. A (re 7 ll Dated: _ March 19, 2021 OF 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28