(PC) Leonard v. Demery ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FREDERICK E. LEONARD, No. 2:20-CV-1167-DMC-P 12 Plaintiff, 13 v. ORDER 14 L. DEMERY, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. 18 § 1983. Before the Court is Plaintiff’s complaint. ECF No. 1. The Court grants leave to amend. 19 I. SCREENING REQUIREMENT 20 The Court must screen complaints from prisoners seeking relief against a 21 governmental entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any 22 cognizable claims and dismiss any portion of the complaint that is frivolous or malicious, fails to 23 state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is 24 immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). 25 A complaint must contain a short and plain statement of the claim that a plaintiff is 26 entitled to relief. Fed. R. Civ. P. 8(a)(2). The complaint must provide “enough facts to state a claim 27 to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 28 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 1 of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 2 662, 678 (2009). To survive screening, a plaintiff’s claims must be facially plausible, which 3 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant 4 is liable for the misconduct alleged. Id. at 678–79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 5 (9th Cir. 2009). Plaintiffs must demonstrate that each defendant personally participated in the 6 deprivation of the plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). If the 7 allegations “do not permit the court to infer more than the mere possibility of misconduct,” the 8 complaint does not state a claim. Iqbal, 556 U.S. at 679. The complaint need not identify “a precise 9 legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1038 (9th Cir. 2016). 10 The Court must construe a pro se litigant’s complaint liberally. See Haines v. 11 Kerner, 404 U.S. 519, 520 (1972) (per curiam); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 12 2012). However, “‘a liberal interpretation of a civil rights complaint may not supply essential 13 elements of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 14 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 15 The Court may dismiss a pro se litigant’s complaint “if it appears beyond doubt that the plaintiff 16 can prove no set of facts in support of his claim which would entitle him to relief.” Hayes v. Idaho 17 Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 18 II. PLAINTIFF’S ALLEGATIONS 19 Plaintiff is a state prisoner. See ECF No. 1 at 1, 3. He sues a single defendant: L. 20 Demery, a correctional officer at Solano State Prison (SSP). Id. at 1–2. 21 Around the end of October 2019, SSP officials called Plaintiff to the mail room to 22 pick up a “quarterly package.” Id. at 3. When he arrived, Demery allegedly began “bombarding” 23 Plaintiff with questions about the texture of his hair and ridiculing him about a lack of visitors. Id. 24 Demery then asked if Plaintiff’s package had “trick or treats” in it and cut it open. Id. Plaintiff tried 25 to sign for his package, but Demery kept repeating her earlier questions. Id. Plaintiff finally asked 26 Demery how her questions were relevant. Id. Demery became angry and ordered Plaintiff out of 27 the mail room. Id. Plaintiff left without his package. See id. Demery gave the package to another 28 inmate to take it away. Id. Plaintiff contends that Demery “confiscated” his package, never gave 1 him reasons for doing so, and never provided any pre-deprivation or post-deprivation remedy for 2 the confiscation of his package. Id. 3 The next day, SSP officials again hailed Plaintiff to the mail room. Id. at 4. Demery 4 approached Plaintiff and demanded to know why he was there. Id. When Plaintiff replied that he 5 had been called, Demery stated that Plaintiff was not supposed to be called because she had 6 personally “red-tagged” his package. Id. Demery was angry that Plaintiff did not answer her 7 questions the day before. Id. Demery again ordered Plaintiff to leave, which he did. Id. 8 After Plaintiff left, he sought out correctional officers for help. Id. Plaintiff 9 explained Demery’s alleged misconduct, and the officers agreed that Plaintiff had a right to 10 challenge Demery’s actions via the prison grievance system and litigation. Id. Plaintiff contends 11 that Demery refused to give Plaintiff his package out of “cruelty” and that he was helpless to 12 retrieve his “deprived” property. Id. 13 Plaintiff completed his complaint on the standard civil rights complaint form 14 available to prisoners. See generally id. at 1–6. In the space provided to state what rights he believes 15 have been violated, Plaintiff lists the First, Fourth, Eight, and Fourteenth Amendments as 16 constitutional rights that he believes Demery violated. Id. at 3–4. He asserts both due process and 17 equal protection violations under the Fourteenth Amendment. Id. 18 III. DISCUSSION 19 Plaintiff cites several constitutional amendments in his complaint. ECF No. at 3–4. 20 But he really only challenges the taking of his property. Id. He specifically notes that Demery (nor 21 anyone else) never provided him with pre- or post-deprivation process. Id. at 3. The Court thus 22 construes Plaintiff’s complaint as attempting to state a due process claim under the Fourteenth 23 Amendment.1 If Plaintiff believes that Demery’s alleged actions violated the other constitutional 24 amendments that he cites and wishes to assert other claims (e.g., a First Amendment retaliation 25 claim), Plaintiff may assert those claims—with facts supporting them—if he amends his complaint. 26 1 Plaintiff, in his prayer for relief, does make a bare allegation that Demery “discriminated against [him]” and acted out of spite and retaliation. ECF No. 10 at 6. But the core focus of Plaintiff’s complaint is the confiscation of his package. 27 See id. at 3–4. Thus, given the context and subject (i.e., the package) of Plaintiff’s claims, as well as his statements that he was never afforded pre- or post-deprivation process, the Court’s interpretation of Plaintiff’s complaint is unchanged 28 at this stage. As indicated, Plaintiff may assert the claims he believes he has when he amends his complaint. 1 As discussed below, however, Plaintiff has not established a threshold due process 2 claims regarding prison grievance procedures or the alleged theft of his property. The Court thus 3 forgoes any lengthy Fourteenth Amendment analysis. 4 The Fourteenth Amendment’s Due Process Clause protects against deprivation of 5 life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1. State action 6 violates the Fourteenth Amendment if it deprives a person “of a constitutionally protected liberty 7 or property interest” without affording satisfactory procedural protections. E.g., McQuillion v. 8 Duncan, 306 F.3d 895, 900 (9th Cir. 2002). At base, the Due Process Clause encompasses a promise 9 of fair procedure. See, e.g., Zinermon v. Burch, 494 U.S. 113, 125 (1990). 10 In the context of procedural due process claims, it is not a deprivation itself that is 11 unlawful. Id. Rather, as implied above, what becomes unconstitutional is deprivation of a liberty or 12 property interest with sufficient due process. Id.; see S.B. by and through Kristina B. v. Cal. Dep’t 13 of Educ., 327 F. Supp. 3d 1218, 1247 (E.D. Cal. 2018). The violation actionable under § 1983 is 14 thus not complete at the time of a deprivation, but when the State fails to provide due process. 15 Zinermon, 494 U.S. at 126. Thus, in order to establish a procedural due process claim, plaintiffs 16 must show (1) a protected liberty or property interest (2) that the government deprived (3) without 17 adequate “process.” E.g., Hotop v. City of San Jose, 982 F.3d 710, 718 (9th Cir. 2020); Shanks v. 18 Dressel, 540 F.3d 1082, 1090 (9th Cir. 2008); Brewster v. Board of Educ., 149 F.3d 971, 983 (9th 19 Cir. 1998). Once the Court determines that a protected interest has been deprived, the question 20 becomes what procedures satisfy “due process of law.” See, e.g., Lavan v. City of Los Angeles, 21 693 F.3d 1022, 1031 (9th Cir. 2012); Brewster, 149 F.3d at 983; see also Cleveland Bd. of Educ v. 22 Loudermill, 470 U.S. 532, 541 (1985); Barry v. Yosemite Cmty. Coll. Dist., No. 1:16–cv–00411– 23 LJO–MJS, 2017 WL 896307, at *4 (E.D. Cal. Mar. 7, 2017). 24 Property is facially a protected interest under the Due Process Clause. U.S. Const. 25 amend. XIV, § 1. Deprivation of a property interest without due process of law is actionable under 26 § 1983. See Zinermon, 494 U.S. at 126; Brewster, 149 F.3d at 983; S.B., 327 F. Supp. at 1247. 27 / / / 28 / / / 1 There is, however, no cognizable § 1983 claim for deprivation of a property interest 2 if the state provides an adequate post-deprivation remedy. See, e.g., Zinermon, 494 U.S. at 129– 3 32; Hudson v. Palmer, 468 U.S. 517, 533 (1984); Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 4 1994) (citing Cal. Gov't Code §§ 810–895) (“[A] negligent or intentional deprivation of a prisoner's 5 property fails to state a claim under section 1983 if the state has an adequate post deprivation 6 remedy.”). California law, through the Government Claims Act, provides an adequate post- 7 deprivation remedy for property deprivations. E.g., Barnett, 31 F.3d at 816–17; see also Nible v. 8 Fink, 828 F. App’x 463, 464 (9th Cir. 2020); Maraglino v. Espinosa, 796 F. App’x 451, 451 (9th 9 Cir. 2020); Burton v. Burton, No. 2:20-cv-02395-JDP (PC), 2021 WL 352148, at *1 (E.D. Cal. 10 Feb. 2, 2021); Holt v. Alvarado, No. 1:19-cv-00930-NONE-GSA-PC, 2020 WL 4922378, at *7 11 (E.D. Cal. Aug. 21, 2020). 12 California offers Plaintiff an adequate post-deprivation remedy for the alleged 13 taking of his property like his quarterly package. See Barnett, 31 F.3d at 816–17; Nible, 828 F. 14 App’x at 464. His due process claim cannot proceed as currently pled. 15 IV. CONCLUSION 16 Because it is possible that the deficiencies identified in this order may be cured by 17 amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire action. 18 See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, 19 as a general rule, an amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 20 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to amend, all claims 21 alleged in the original complaint which are not alleged in the amended complaint are waived. See 22 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if Plaintiff amends the complaint, 23 the Court cannot refer to the prior pleading in order to make Plaintiff’s amended complaint 24 complete. See Local Rule 220. An amended complaint must be complete in itself without reference 25 to any prior pleading. See id. 26 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 27 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis 28 v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how each 1 | named defendant is involved and must set forth some affirmative link or connection between each 2 | defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 3 | 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 4 Finally, Plaintiff is warned that failure to file an amended complaint within the time 5 | provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 1260- 6 | 61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply with 7 | Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). See 8 | Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiff's complaint (ECF No. 1) 1s dismissed with leave to amend. 11 2. Plaintiff shall file a second amended complaint within 30 days of the date of 12 | this order. 13 | Dated: October 13, 2021 Ssvcqo_ DENNIS M. COTA 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28