(PC) Justus v. Delacruz ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES F. JUSTUS IV, 1:20-cv-00241-DAD-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 13 v. DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM 14 DELACRUZ, et al., (ECF No. 11.) 15 Defendants. OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS 16 17 18 19 20 21 22 23 24 I. BACKGROUND 25 Charles F. Justus IV (“Plaintiff”) is a state prisoner proceeding pro se and in forma 26 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On February 18, 2020, 27 Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On February 25, 2020, the 28 court screened the Complaint and issued an order dismissing the Complaint for failure to state a 1 claim, with leave to amend. (ECF No. 9.) On March 23, 2020, Plaintiff filed the First Amended 2 Complaint, which is now before the court for screening. 28 U.S.C. § 1915. (ECF No. 11.) 3 II. SCREENING REQUIREMENT 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 9 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 10 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 11 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 12 A complaint is required to contain “a short and plain statement of the claim showing that 13 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 14 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 16 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 17 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 18 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 19 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 20 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 21 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 22 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 23 plausibility standard. Id. 24 III. SUMMARY OF FIRST AMENDED COMPLAINT 25 Plaintiff is currently incarcerated at California State Prison-Los Angeles County in 26 Lancaster, California. The events at issue in the First Amended Complaint allegedly occurred at 27 Kern Valley State Prison (KVSP) in Delano, California, when Plaintiff was incarcerated there in 28 the custody of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff 1 names as defendants Correctional Officer (C/O) A. Delacruz (2nd watch floor officer), C/O T. 2 Lascina (2nd watch floor officer), C/O G. Sanchez (3rd watch floor officer), and C/O S. Higuera 3 (3rd watch floor officer) (“collectively, “Defendants”). 4 A summary of Plaintiff’s allegations follows: Plaintiff was housed in a cell alone at Kern 5 Valley State Prison, D-yard. Bldg. 8. On or about April 13, 2019, Plaintiff went to the Critical 6 Treatment Center for trying to commit suicide. At this time, defendants A. Delacruz and T. 7 Lascina, correctional officers working the 2nd watch floor, should have packed up all of 8 Plaintiff’s personal property, inventoried it, and placed it in a secure area. This is according to 9 CDCR’s rules and regulations, the D.O.M. Chapter 5, Article 43 – Inmates property – 54030.6 – 10 Liability. Since Plaintiff’s suicide attempt was at about 12:00, defendants G. Sanchez and S. 11 Higuera should have taken responsibility for inventorying, packing, and securing Plaintiff’s 12 personal property. 13 When Plaintiff was discharged from the crisis bed unit, he was housed at a higher level 14 of care in the Enhanced Outpatient Program (EOP). On or about May 7, 2019, Plaintiff received 15 his personal property from C/O Hunt [not a defendant], EOP property officer, who stated that 16 C/Os at D-yard, Bldg. 8 did not know where Plaintiff’s property was, so he had to look around 17 and found it in a closet. The only way C/O Hunt knew it belonged to Plaintiff was by Plaintiff’s 18 paperwork inside. The C/Os did not inventory it so it did not have a CDCR 1083 property 19 inventory form. C/O Hunt said he wanted to inventory it now in front of Plaintiff “so D-yard’s 20 mess up doesn’t fall on me.” (ECF No. 11 at 6.) 21 During the inventory Plaintiff noticed that approximately $400.00 worth of his property 22 was missing. Plaintiff has all of the receipts and inventory forms to prove ownership of the 23 missing property. 24 It is undeniably clear that Defendants acted with negligence towards Plaintiff’s personal 25 property and Defendants’ own rules and regulations according to the D.O.M. and Title 15, which 26 state that liability for the loss of or damage to property caused by a CDCR employee falls on 27 CDCR to reimburse or compensate for damages. Plaintiff filed several inmate grievances which 28 were rejected or cancelled, and the issue was not resolved. 1 In Plaintiff’s case, it was unauthorized deprivation of property, but it violates the Due 2 Process Clause because the state did not provide an adequate post-deprivation remedy. Now, 3 CDCR has an adequate post-deprivation remedy set forth but in Plaintiff’s case, he was not 4 provided with it. 5 Defendants Delacruz and Lascina, or defendants Sanchez and Higuera, depending on time 6 frames, committed a crime of theft or burglary against Plaintiff by stealing Plaintiff’s personal 7 property by failing to pack it all at the time of the incident. 8 There can be no dispute that C/Os work for CDCR to guard prisoners, but also to protect 9 prisoners against wrongdoing or threat to their safety, which did not happen in Plaintiff’s case. 10 It could be argued that Defendants acted with negligence in a malicious and sadistic manner. 11 Also, according to the D.O.M. and Title 15, all CDCR employees, who are state employees, are 12 supposed to conduct themselves ethically and professionally at all times, which did not happen. 13 Under the rational scrutiny test, Plaintiff asserts that Defendants violated his Fourteenth 14 Amendment right to life, liberty, or property without due process of law, and to equal protection 15 of the laws. When Defendants deliberately stole Plaintiff’s personal property by not packing it, 16 it was unauthorized deprivation of property but violates the Due Process Clause because the state 17 did not provide an adequate post-deprivation remedy. 18 The obstruction of Plaintiff having his personal property packed up when he left after 19 attempting suicide, in accordance with CDCR’s own rules, the D.O.M, and Title 15, and given 20 back to him according to the same rules and mental health clearance, and also giving Plaintiff an 21 adequate post-deprivation remedy, which did not happen, was sadistic and malicious in intent, 22 and the argument could strongly be made. 23 First, blatantly stealing someone’s personal property goes against the moral compass 24 because it was not the right nor honorable thing to do. Second, it goes against United States’ 25 law. Stealing someone’s personal property is theft or burglary. The fact that Defendants are 26 C/Os only underscores the harm they inflicted with the deliberately indifferent attitude towards 27 the Plaintiff’s property. Also, not getting an adequate post-deprivation remedy, which is set forth 28 in the D.O.M. and Title 15, goes against U.S. Amendments. 1 Plaintiff requests monetary damages, including punitive damages, and declaratory relief. 2 IV. PLAINTIFF’S CLAIMS 3 The Civil Rights Act under which this action was filed provides: 4 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 5 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 6 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 7 8 42 U.S.C. § 1983. 9 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 10 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 11 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 12 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 13 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 14 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 15 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 16 under color of state law and (2) the defendant deprived him of rights secured by the Constitution 17 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 18 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 19 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 20 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 21 which he is legally required to do that causes the deprivation of which complaint is made.’” 22 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 23 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 24 established when an official sets in motion a ‘series of acts by others which the actor knows or 25 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 26 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 27 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 28 /// 1 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 2 1026 (9th Cir. 2008). 3 A. Loss of Personal Property – Due Process 4 Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 5 728, 730 (9th Cir. 1974). However, a plaintiff has no due process claim based on the defendants’ 6 unauthorized deprivation of his personal property—whether intentional or negligent—if a 7 meaningful state post-deprivation remedy for his loss is available. See Hudson v. Palmer, 468 8 U.S. 517, 533 (1984). California’s tort claim process provides that adequate post-deprivation 9 remedy. Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 10 810–895) (“[A] negligent or intentional deprivation of a prisoner’s property fails to state a claim 11 under section 1983 if the state has an adequate post deprivation remedy.”); see also Teahan v. 12 Wilhelm, 481 F. Supp. 2d 1115, 1120 (S.D. Cal. 2007); Kemp v. Skolnik, No. 2:09-CV-02002- 13 PMP, 2012 WL 366946, at *6 (D. Nev. Feb. 3, 2012) (finding prisoner’s alleged loss or 14 destruction of newspaper, magazines, and books failed to state a Fourteenth Amendment claim 15 pursuant to Hudson and noting that “[i]f Plaintiff wishes to recoup the value of the alleged lost 16 materials, he will have to file a claim in small claims court in state court.”). 17 Due Process is therefore satisfied if there is a meaningful post-deprivation remedy 18 available to him. Hudson, 468 U.S. at 533. Plaintiff has an adequate post-deprivation remedy 19 available under California law. Accordingly, Plaintiff has failed to state a cognizable claim for 20 the alleged deprivation of his personal property against any of the Defendants. 21 B. Appeals Process 22 To the extent that Plaintiff seeks to state a claim against any of the Defendants pertaining 23 to the review and handling of Plaintiff’s inmate appeals, Plaintiff fails to state a claim. 24 The Due Process Clause protects prisoners from being deprived of liberty without due 25 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of 26 action for deprivation of due process, a plaintiff must first establish the existence of a liberty 27 interest for which the protection is sought. “States may under certain circumstances create liberty 28 interests which are protected by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 483- 1 84 (1995). Liberty interests created by state law are generally limited to freedom from restraint 2 which “imposes atypical and significant hardship on the inmate in relation to the ordinary 3 incidents of prison life.” Id. 4 “[I]nmates lack a separate constitutional entitlement to a specific prison grievance 5 procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in 6 processing of appeals because no entitlement to a specific grievance procedure) (citing Mann v. 7 Adams, 855 F.2d 639, 640 (9th Cir. 1988)). “[A prison] grievance procedure is a procedural 8 right only, it does not confer any substantive right upon the inmates.” Azeez v. DeRobertis, 568 9 F. Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see 10 also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure 11 confers no liberty interest on prisoner). “Hence, it does not give rise to a protected liberty interest 12 requiring the procedural protections envisioned by the Fourteenth Amendment.” Azeez, 568 F. 13 Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). 14 Actions in reviewing prisoner’s administrative appeal generally cannot serve as the basis 15 for liability in a section 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who 16 knows about a violation of the Constitution, and fails to cure it, has violated the Constitution 17 himself is not correct. “Only persons who cause or participate in the violations are responsible. 18 Ruling against a prisoner on an administrative complaint does not cause or contribute to the 19 violation.” Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir. 2005) accord George v. Smith, 507 20 F.3d 605, 609-10 (7th Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir. 1999); Vance 21 v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996).; Haney v. Htay, No. 1:16-CV-00310-AWI-SKO- 22 PC, 2017 WL 698318, at *4–5 (E.D. Cal. Feb. 21, 2017). 23 Thus, to the extent that Plaintiff seeks to state a claim pertaining to the processing of his 24 prison appeals, Plaintiff fails to state a cognizable claim. 25 C. Equal Protection – Fourteenth Amendment 26 The Equal Protection Clause requires the State to treat all similarly situated people 27 equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 28 L.Ed.2d 313 (1985). This does not mean, however, that all prisoners must receive identical 1 treatment and resources. See Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972); Ward v. Walsh, 1 F.3d 2 873, 880 (9th Cir. 1993); Allen v. Toombs, 827 F.2d 563, 568–69 (9th Cir. 1987). 3 “To prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege facts 4 plausibly showing that ‘“the defendants acted with an intent or purpose to discriminate against 5 [them] based upon membership in a protected class,’” (citing see Thornton v. City of St. Helens, 6 425 F.3d 1158, 1166 (9th Cir. 2005) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th 7 Cir. 2001)), or that similarly situated individuals were intentionally treated differently without a 8 rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553 9 U.S. 591, 601-02, 128 S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 10 120 S.Ct. 1073 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North 11 Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 12 Plaintiff has not alleged facts demonstrating that he was intentionally discriminated 13 against on the basis of his membership in a protected class, or that he was intentionally treated 14 differently than other similarly situated inmates without a rational relationship to a legitimate 15 state purpose. Therefore, Plaintiff fails to state a claim for relief for violation of his right to equal 16 protection. 17 D. Crimes – Theft and Burglary 18 Plaintiff alleges that Defendants should be charged with theft and burglary for taking 19 Plaintiff’s property. These allegations suggest that Plaintiff seeks to bring a criminal action 20 against Defendants. “Section 1983 . . . creates a cause of action for violations of the federal 21 Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) 22 (internal quotations omitted). A § 1983 action is a civil action brought under the Civil Rights 23 Act. As a rule, civil actions may be started by individuals, but criminal actions may only be 24 started by the state and not by individuals. Indeed, with limited exceptions, none which apply to 25 § 1983 actions, federal law does not allow a private citizen to bring a criminal prosecution against 26 another citizen. Therefore, Plaintiff is unable to bring a criminal action under § 1983 against 27 Defendants, and he fails to state a claim against any of the Defendants for theft or burglary. 28 /// 1 E. State Law Claims 2 Plaintiff alleges that Defendants were negligent and violated CDCR’s rules and 3 regulations, the D.O.M., and Title 15. These are state law claims. Violation of state tort law, 4 state regulations, rules and policies of the CDCR, or other state law is not sufficient to state a 5 claim for relief under § 1983. Section 1983 does not provide a cause of action for violations of 6 state law. See Galen v. Cnty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007). To state a 7 claim under § 1983, there must be a deprivation of federal constitutional or statutory rights. See 8 Paul v. Davis, 424 U.S. 693 (1976); also see Buckley v. City of Redding, 66 F.3d 188, 190 (9th 9 Cir. 1995); Gonzaga University v. Doe, 536 U.S. 273, 279 (2002). Although the court may 10 exercise supplemental jurisdiction over state law claims, Plaintiff must first have a cognizable 11 claim for relief under federal law. See 28 U.S.C. § 1367. 12 “California’s Government Claims Act requires that a tort claim against a [state] public 13 entity or its employees for money or damages be presented to the [Department of General 14 Services] 1 no more than six months after the cause of action accrues.” Lopez v. Cate, No. 1:10- 15 cv-01773-AWI, 2015 WL 1293450, at *13 (E.D. Cal. 2015) (citing Cal. Gov’t Code §§ 905.2, 16 910, 911.2, 945.4, 950-950.2). “Timely claim presentation is not merely a procedural 17 requirement, but is . . . a condition precedent to plaintiff’s maintaining an action against defendant 18 and thus an element of the plaintiff’s cause of action.” Id. (internal quotation marks and citations 19 omitted). The “obligation to comply with the Government Claims Act” is independent of the 20 obligation to exhaust administrative remedies pursuant to the Prison Litigation Reform Act. 21 McCoy v. Torres, No. 119CV01023NONEJLTPC, 2020 WL 5257842, at *2 (E.D. Cal. Sept. 3, 22 2020), report and recommendation adopted, No. 119CV01023NONEJLTPC, 2021 WL 111748 23 (E.D. Cal. Jan. 12, 2021) (citing McPherson v. Alamo, No. 3:15-cv-03145-EMC, 2016 WL 24 7157634, at *6 (N.D. Cal. 2016) (citing Parthemore v. Col, 221 Cal. App. 4th 1372, 1376 (2013)). 25 Plaintiff has not met this obligation. Therefore, Plaintiff fails to state any state law claims. 26 27 1 The Department of General Services was formerly the Victim Compensation and Government Claims Board. McCoy v. Torres, No. 119CV01023NONEJLTPC, 2020 WL 5257842, at *2 28 (E.D. Cal. Sept. 3, 2020), report and recommendation adopted, No. 119CV01023NONEJLTPC, 2021 WL 111748 (E.D. Cal. Jan. 12, 2021). 1 F. Relief Requested 2 Besides monetary damages, Plaintiff requests declaratory relief. Plaintiff’s request for 3 declaratory relief is subsumed by Plaintiff’s damages claim. See Rhodes v. Robinson, 408 F.3d 4 559, 565-66 n.8 (9th Cir. 2005) (because claim for damages entails determination of whether 5 officers’ alleged conduct violated plaintiff’s rights, the separate request for declaratory relief is 6 subsumed by damages action); see also Fitzpatrick v. Gates, No. CV 00-4191-GAF (AJWx), 7 2001 WL 630534, at *5 (C.D. Cal. Apr. 18, 2001) (“Where a plaintiff seeks damages or relief 8 for an alleged constitutional injury that has already occurred declaratory relief generally is 9 inappropriate[.]”) Therefore, Plaintiff is not entitled to declaratory relief in this case. 10 V. CONCLUSION AND RECOMMENDATIONS 11 For the reasons set forth above, the court finds that Plaintiff fails to states any cognizable 12 claims in the First Amended Complaint against any of the Defendants. Therefore, the court shall 13 recommend that this case be dismissed, with prejudice, for failure to state a claim. 14 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give 15 leave to amend when justice so requires.” Here, the court is persuaded that Plaintiff is unable to 16 allege any facts, based upon the circumstances he challenges, that would state a cognizable claim 17 under section 1983. “A district court may deny leave to amend when amendment would be 18 futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013). The court finds that the 19 deficiencies outlined above are not capable of being cured by amendment, and therefore further 20 leave to amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 21 1122, 1127 (9th Cir. 2000). 22 Accordingly, IT IS HEREBY RECOMMENDED that: 23 1. This case be dismissed, with prejudice, for failure to state a claim; and 24 2. The Clerk be directed to close this case. 25 These findings and recommendations will be submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 27 after the date of service of these findings and recommendations, Plaintiff may file written 28 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 1 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 2 specified time may result in waiver of the right to appeal the district court’s order. Wilkerson v. 3 Wheeler, 772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 4 1394 (9th Cir. 1991)). 5 IT IS SO ORDERED. 6 7 Dated: March 26, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28