United States District Court, D. Oregon
ORDER TO DISMISS
MARCOA. 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, the
Court granted plaintiffs application to proceed in forma
pauperis. However, for the reasons set forth below, the
Court DISMISSES plaintiffs Complaint.
alleges that defendants violated his rights by confiscating,
damaging, and refusing to return to plaintiff certain items
of personal property. Plaintiff alleges defendants did so in
retaliation for plaintiffs involvement in assaults against
prison staff. Plaintiff alleges defendants' actions
violated plaintiffs due process and equal protections rights,
and that they constitute deliberate indifference and unlawful
retaliation. 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.
§ 1915A(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): Eldridse v. Block. 832
F.2d 1132, 1136 (9th Cir. 1987). Apro 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. 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. 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
extent plaintiff alleges that defendants retaliated against
him, the five basic elements of a "viable claim of First
Amendment retaliation" in the prison context are: (1) an
assertion that a state actor took some adverse action against
an inmate (2) because of (3) that prisoner's protected
conduct, and that such action (4) chilled the inmate's
exercise of his First Amendment rights, and (5) the action
did not reasonably advance a legitimate correctional goal.
Rhodes v. Robinson. 408 F.3d 559, 567-68 (9th Cir.
2005). A plaintiff need not prove that the alleged
retaliatory action, in itself, violated a constitutional
right. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir.
1995). However, the plaintiff does have the burden of
demonstrating that his exercise of his First Amendment rights
was a substantial or motivating factor behind the
defendants' conduct. Mt. Healthy City Sch. Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Mere
allegations of retaliatory motive or conduct will not
suffice; a prisoner must "allege specific facts showing
retaliation because of the exercise of the prisoner's
constitutional rights. Frazier v. Dubois. 922 F.2d
560, 562 n.l (10th Cir. 1990).
plaintiff does not allege facts establishing that the
exercise of his First Amendment rights was a substantial or
motivating factor behind the defendants' alleged
retaliatory conduct. To the contrary, plaintiff alleges
defendants actions were spurred by plaintiffs involvement in
assaults on correctional officials. Accordingly, plaintiff
does not state a First Amendment retaliation claim 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 Willowbrookv. 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. Plaintiffs allegations of lost