Greene v. Brown

Northern District of California, cand-4:2015-cv-01130

ORDER OF DISMISSAL. Signed by Judge JEFFREY S. WHITE on 6/1/15.

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 MARCELLUS GREENE, a.k.a.) No. C 15-1130 JSW (PR) MARVELLOUS AFRIKAN WARRIOR,) 11) ORDER OF DISMISSAL Plaintiff,) 12) v.) 13) J. BROWN, et al.,) 14) Defendants.) 15 __________________________________ 16 INTRODUCTION 17 Plaintiff, a prisoner of the State of California, filed this pro se civil rights 18 complaint under 42 U.S.C. § 1983. For the reasons discussed below, the complaint is 19 dismissed. The application to proceed in forma pauperis is granted in a separate order. 20 STANDARD OF REVIEW 21 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement 22 of the claim showing that the pleader is entitled to relief." "Specific facts are not 23 necessary; the statement need only '"give the defendant fair notice of what the. . . . claim 24 is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 25 (2007) (citations omitted). Although in order to state a claim a complaint "does not need 26 detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his 27 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic 28 1 recitation of the elements of a cause of action will not do. . . . Factual allegations must 2 be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. 3 Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer 4 "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. Pro se 5 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 6 699 (9th Cir. 1990). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: 8 (1) that a right secured by the Constitution or laws of the United States was violated, and 9 (2) that the alleged violation was committed by a person acting under the color of state 10 law. West v. Atkins, 487 U.S. 42, 48 (1988). 11 LEGAL CLAIMS 12 Plaintiff alleges that Defendant Brown, a guard at Pelican Bay State Prison, 13 threatened him by stating "U won't be going home." Allegations of mere threats also are 14 not cognizable under § 1983. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere 15 threat does not constitute constitutional wrong, nor do allegations that naked threat was 16 for purpose of denying access to courts compel contrary result). This allegation does not 17 state a cognizable claim under Section 1983. 18 Plaintiff also alleges that Brown and "others" took his peanut butter and jelly, 19 vitamins, toothpaste, and deodorant without authorization. Neither the negligent nor 20 intentional deprivation of property states a due process claim under Section 1983 if the 21 deprivation was random and unauthorized, however. Parratt v. Taylor, 451 U.S. 527, 22 535-44 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 23 330-31 (1986). The availability of an adequate state post-deprivation remedy, e.g., a state 24 tort action, precludes relief because it provides sufficient procedural due process. See 25 Zinermon v. Burch, 494 U.S. 113, 128 (1990) (where state cannot foresee, and therefore 26 provide meaningful hearing prior to, deprivation statutory provision for post-deprivation 27 hearing or common law tort remedy for erroneous deprivation satisfies due process). 28 California law provides such an adequate post-deprivation remedy. See Barnett v. 1 Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov't Code §§ 810-895). 2 Accordingly, Plaintiff's allegations that the unauthorized deprivation of his personal 3 property does not state a cognizable claim under Section 1983 for the violation of his 4 constitutional rights. 5 CONCLUSION 6 For the reasons set out above, this action is DISMISSED. 7 The Clerk shall close the file and enter judgment. 8 IT IS SO ORDERED. 9 DATED: June 1, 2015 10 11 JEFFREY S. WHITE United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28