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Moore v. Curran

United States District Court, N.D. California
Jun 16, 2005
No. C 05-1857 MJJ (PR) (N.D. Cal. Jun. 16, 2005)

Opinion

No. C 05-1857 MJJ (PR).

June 16, 2005


ORDER OF DISMISSAL


Plaintiff, a California prisoner at the Alameda County Jail, California, filed this pro se civil rights complaint pursuant to 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis in a separate order.

DISCUSSION

A. Standard of Review

A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief.See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law.See West v. Atkins, 487 U.S. 42, 48 (1988). B. Legal Claims

Plaintiff alleges that $29 was withdrawn from his trust account for purchases from the jail canteen without plaintiff's authorization. According to plaintiff, defendant Curran caused the withdrawal by forging plaintiff's signature. Ordinarily, due process of law requires notice and an opportunity for some kind of hearing prior to the deprivation of a significant property interest. See Memphis Light, Gas Water Div. v. Craft, 436 U.S. 1, 19 (1978). However, neither the negligent nor intentional deprivation of property states a due process claim under § 1983 if the deprivation was random and unauthorized. See Parratt v. Taylor, 451 U.S. 527, 535-44 (1981) (state employee negligently lost prisoner's hobby kit), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional destruction of inmate's property). The availability of an adequate state post-deprivation remedy, e.g., a state tort action, precludes relief because it provides sufficient procedural due process.See Zinermon v. Burch, 494 U.S. 113, 128 (1990); King v. Massarweh, 782 F.2d 825, 826 (9th Cir. 1986). California Law provides such an adequate post-deprivation remedy. See Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov't Code §§ 810- 895). Curran's alleged forging of plaintiff's signature, and the resulting withdrawal of funds from plaintiff's account, is alleged to not have been authorized by jail rules. Plaintiff may follow the state law procedures for bringing a tort claim against jail officials for such unauthorized seizure of his property, but such a claim does not, even liberally construed, state a constitutional violation.

Plaintiff also alleges that Curran threatened him on numerous occasions. Allegations of mere threats also are not cognizable under § 1983. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute constitutional wrong). Accordingly, the claims against Curran for alleged threats do not state a cognizable claim for relief.

He does not describe what Curran threatened to do.

Plaintiff's allegations against the other defendants, supervisors and municipal entities, are contingent on the validity of the claims against Curran. As the claims against Curran fail, plaintiff's claims against the other defendants also fail.

CONCLUSION

For the foregoing reasons, the above-titled action is hereby DISMISSED for failure to state a claim upon which relief can be granted.

The Clerk shall close the file, and terminate any pending motions.

IT IS SO ORDERED.


Summaries of

Moore v. Curran

United States District Court, N.D. California
Jun 16, 2005
No. C 05-1857 MJJ (PR) (N.D. Cal. Jun. 16, 2005)
Case details for

Moore v. Curran

Case Details

Full title:GARY B. MOORE, Plaintiff, v. DEPUTY CURRAN, et al., Defendants

Court:United States District Court, N.D. California

Date published: Jun 16, 2005

Citations

No. C 05-1857 MJJ (PR) (N.D. Cal. Jun. 16, 2005)