Opinion
Case No. C19-883-JCC
06-17-2019
GABRIEL ECKARD, Plaintiff, v. PAULA KAVANAGH, Defendant.
REPORT AND RECOMMENDATION
Plaintiff is detained at the Snohomish County Jail. He has filed a pro se prisoner complaint seeking relief under 42 U.S.C. § 1983 against defendant Jail Officer Pamela Kavanagh. Dkt. 5.
The Court is required to screen complaints filed by plaintiffs who are prisoners. See 28 U.S.C. § 1915A(a). The Court must "dismiss the complaint, or any portion of the complaint, if it is: (1) frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. at (b); 28 U.S.C. § 1915(e)(2); see Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998).
The complaint here alleges plaintiff is housed in the jail's observation unit. Dkt. 5 at 2. Plaintiff contends he requested items from his personal storage (mail and commissary receipts), and that despite his requests defendant has withheld his property from him. Id. at 2-3. He claims defendant's denial of his property violate the First and Fourteenth Amendments and that the Court should therefore award him compensatory damages of $1,000,000 and punitive damages of $1,000,000. Id. at 4. Because plaintiff has an adequate post-deprivation state remedy for the alleged denial and taking of his property, relief under 42 U.S.C. § 1983 is not available. No amendment to the complaint can cure the fact that plaintiff's claim is not actionable under § 1983. The Court accordingly recommends dismissing the complaint with prejudice and without further leave to amend.
DISCUSSION
To sustain an action under 42 U.S.C. § 1983, plaintiff must show he suffered a violation of rights protected by the Constitution or created by federal statute. Crumpton v. Gates, 947 F.2d 1418, 1429 (9th Cir. 1991). Plaintiff alleges his Fourteenth and First Amendment rights have been violated. The Fourteenth Amendment bars states from depriving a person of property without due process of law. U.S. Const. Amend. XIV. However, where a state actor's unauthorized acts negligently or intentionally deprives an individual of property, the individual is limited to using state post-deprivation remedies if the state has an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that "an unauthorized 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 post deprivation remedy for the loss is available").
The complaint contains nothing indicating plaintiff's First Amendment rights have been violated.
The Ninth Circuit has specifically held that an adequate post-deprivation remedy for confiscated property is available in the State of Washington through, for example, the Washington State Tort Claims Act, R.C.W. § 4.92.090. Joshua v. Newell, 871 F.2d 884, 887 (9th Cir.1989). Similarly, under Washington law, "all local governmental entities . . . shall be liable for damages arising out of their tortious conduct. "R.C.W § 4.96.010." As plaintiff has an adequate Washington State post-deprivation remedy for the alleged wrongful taking or withholding of his property, § 1983 relief is foreclosed and the complaint should dismissed with prejudice.
OBJECTIONS AND NOTING DATE
Any objections to this Recommendation must be filed no later than Monday, July 1, 2019. The matter will be ready for the Court's consideration on Friday, July 5, 2019 and the Clerk should so note the matter. Objections shall not exceed 8 pages. The failure to timely object may affect the right to appeal.
DATED this 17th day of June, 2019.
/s/_________
BRIAN A. TSUCHIDA
Chief United States Magistrate Judge