United States District Court, D. Oregon
ORDER TO DISMISS
A. HERNANDEZ, UNITED STATES DISTRICT JUDGE
an inmate at the Two Rivers Correctional Institution, brings
this civil rights action pursuant to 42 U.S.C. § 1983.
Pursuant to an order entered by the court this date,
plaintiff was granted leave to proceed in forma
pauperis. However, for the reasons set forth below,
plaintiffs complaint is dismissed for failure to state a
claim upon which relief may be granted. See 28
U.S.C. § 1915(e)(2).
alleges that defendants violated his rights by confiscating,
damaging, and refusing to return to plaintiff certain items
of personal property, including a pair of shoes plaintiff was
authorized to possess pursuant to medical orders. Plaintiff
alleges defendants' actions violated plaintiffs due
process and equal protection rights, and that they constitute
deliberate indifference. Plaintiff also alleges supplemental
state law claims. By way of remedy, plaintiff seeks
declaratory and injunctive relief, as well as money damages.
district court must dismiss an action initiated by a prisoner
seeking redress from a governmental entity or officer or
employee, if the Court determines that the action (I) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief. See 28 U.S.C.
§ l9l5A(b). When a plaintiff is proceeding pro
se, the court must construe the pleadings liberally and
afford the plaintiff the benefit of any doubt. Erickson
v. Pardus. 551 U.S. 89, 94 (2007). Moreover, before
dismissing a pro se civil rights complaint for
failure to state a claim, the court supplies the plaintiff
with a statement of the complaint's deficiencies.
Karim-Panahi v. Los Angeles Police Dept.. 839 F.2d
621, 623-24 (9th Cir. 1988); Eldridge v. Block. 832
F.2d 1132, 1136 (9th Cir. 1987). A pro se litigant
will be given leave to amend his or her complaint unless it
is clear that the deficiencies of the complaint cannot be
cured by amendment. Karim-Panahi, 839 F.2d at 623;
Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must allege facts showing the deprivation of a
right, privilege, or immunity secured by the Constitution or
federal law by a person acting under color of state law.
L.W. Grubbs. 974 F.2d 119, 120 (9th Cir. 1992);
Collins v. Womancare. 878 F.2d 1145, 1147 (9th Cir.
Process Clause protects prisoners from being deprived of
property without due process of law. Wolff v.
McDonald. 418 U.S. 539, 556 (1974). Moreover, prisoners
have a protected interest in their personal property.
Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974).
The procedural component of the Due Process Clause is not,
however, violated by a random, unauthorized deprivation of
property if the state provides an adequate post-deprivation
remedy. Hudson v. Palmer. 468 U.S. 517, 533 (1984);
Barnett v. Centoni. 31 F.3d 813, 816-17 (9th Cir.
1994) (per curiam).
plaintiff alleges defendants were responsible for returning
his personal property and that the property was either lost
or damaged. Plaintiff does not have a due process claim based
on defendants' purportedly unauthorized deprivation of
his personal property-whether intentional or
negligent-because a meaningful state post-deprivation remedy
for his loss is available. See Osborne v. Williams.
Case No. CV. 09-1420-PA, 2010 WL 11537608, at *l (D. Or. Jan.
12, 2010) (Oregon provides an adequate post-deprivation
remedy in the form of the Oregon Tort Claims Act) (citing Or.
Rev. Stat. § 30.260 et seq.); Patton v. Thomas.
Case No. CV. 10-1333-MO, 2011 WL 837149, at *2 (D. Or. Mar.
3, 2011) (same). As a result, plaintiff fails to state a
claim of deprivation of his due process rights upon which
relief may be granted.
also fails to allege facts establishing a claim of
discrimination. An equal protection claim may be established
in two ways. The first method requires a plaintiff to show
that the defendant has intentionally discriminated against
him on the basis of his membership in a protected class.
See, e.g., Lee v. City of Los Angeles. 250
F.3d 668, 686 (9th Cir. 2001). Second, a plaintiff may
establish an equal protection claim by showing that similarly
situated individuals were intentionally treated differently
without a rational relationship to a legitimate state
purpose. Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000). Here, plaintiff does not allege facts
establishing a claim under either theory.
claim of "deliberate indifference" likewise lacks
the necessary facts. The Eighth Amendment affords prisoners
protection against the "wanton and unnecessary
infliction of physical pain," as well as against
exposure to egregious physical conditions that deprive them
of basic human needs. Rhodes v. Chapman, 452 U.S.
337, 347 (1981). "[C]onditions that cannot be said to be
cruel and unusual under contemporary standards are not
unconstitutional. To the extent that such conditions are
restrictive and even harsh, they are part of the penalty that
criminal offenders pay for their offenses against
society." Id. Plaintiff s allegations of lost
and damaged personal property do not impinge on a
constitutionally protected basic human need and do not rise
to the level of cruel and unusual punishment.
to the extent plaintiffs complaint is construed as alleging a
claim that defendants were deliberately indifferent to
plaintiff s need for medically approved shoes, such a claim
requires plaintiff to demonstrate a serious medical need,
i.e., that failure to allow the medically approved
shoes could result in further significant injury or the
unnecessary and wanton infliction of pain, and that the
defendants' response to plaintiffs serious medical need
was deliberately indifferent. Jett v.
Penner. 439 F.3d 1091, 1096 (9th Cir. 2006). The
defendants must be aware of facts from which they could make
an inference that a "substantial risk of serious harm
exists" and must actually make the inference. Farmer
v. Brennan. 511 U.S. 825, 837 (1994). Plaintiff does not
allege facts establishing these requirements.
plaintiff alleges claims that defendants violated his rights
under state law. Although this Court may exercise
supplemental jurisdiction of state law claims, a plaintiff
must first have a cognizable claim for relief under federal
law. See 28 U.S.C. § 1367. Here, the Court
fails to find any ...