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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ANTOLIN ANDREWS,

Plaintiff, No. CIV S-04-1107 DFL GGH P

vs.

THERESA GUZMAN, et al.,

Defendants. ORDER

 /

Plaintiff is proceeding pro se with a civil rights action pursuant to 42 U.S.C. §

1983. Pending before the court is plaintiff’s amended complaint filed January 30, 2006. Named

as defendants are California State Prison-Solano (CSP-Solano) Correctional Officers Tapia and

Smith and Fed Ex, Inc. 

Plaintiff alleges that on August 18, 2005, he was released from the custody of the

California Department of Corrections to the United States Bureau of Immigration and Customs

Enforcement (BICE). At that time plaintiff was transferred from CSP-Solano to BICE custody in

Washington state. 

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At the time of his transfer, plaintiff had five boxes of legal and personal property. 

Defendants Tapia and Smith decided that plaintiff’s property would not physically accompany

plaintiff during the transfer. Instead, defendants told plaintiff that he would have to pay to ship

his property. After plaintiff paid $150 to have the property shipped, defendant Tapia had the

property shipped on November 16, 2005. The property, through a misunderstanding, was

shipped back to defendant Tapia.

Officials at the Northwest Detention Center, where plaintiff was now housed,

arranged to have plaintiff’s property shipped using Fed Ex. At the time plaintiff’s property was

shipped via Fed Ex, defendants Tapia and Smith estimated that the property was worth $100. 

Plaintiff alleges that his property, which included a typewriter, stereo, cassette and disc-man, was

valued at over $500.

When the property arrived at the Northwest Detention Center, the typewriter was

“totaled.” Plaintiff then filed a claim with defendant Fed Ex. Defendant Fed Ex paid the claim

by sending plaintiff $100 and crediting the shipping account by $197.64. 

In addition, when the property arrived plaintiff discovered that two boxes of his

legal property was missing. Included in these boxes were papers related to his criminal appeal

and civil rights cases. Plaintiff claims that without these papers, he was unable to prosecute his

civil rights cases because he did not know the case numbers. 

Plaintiff alleges that defendants Tapia and Smith violated his right of access to the

courts by causing the loss of his legal property. Plaintiff alleges that defendant Tapia deliberately

misplaced his legal papers in order to prevent plaintiff from litigating matters against the prison. 

The court finds that plaintiff has stated a colorable claim for denial of access to the courts against

defendants Tapia and Smith.

Plaintiff also alleges that defendants Tapia and Smith are liable for the destruction

of his typewriter. The United States Supreme Court has held that “an unauthorized intentional

deprivation of property by a state employee does not constitute a violation of the procedural

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requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful

postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). 

Thus, where the state provides a meaningful postdeprivation remedy, only authorized, intentional

deprivations constitute actionable violations of the Due Process Clause. An authorized

deprivation is one carried out pursuant to established state procedures, regulations, or statutes. 

Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of

Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987).

In the instant case, plaintiff has not alleged any facts which suggest that

defendants’ conduct regarding the typewriter was authorized. The California Legislature has

provided a remedy for tort claims against public officials in the California Government Code,

§§ 900, et seq. Since plaintiff has not attempted to seek redress in the state system, he cannot sue

in federal court on the claim that the state deprived him of property without due process of the

law. 

Plaintiff alleges that he is suing defendant FedEx under the Carmack Amendment. 

Amended Complaint, ¶ 56. FedEx is a federally certificated all-cargo air carrier operating under

the authority granted it by the Federal Aviation Administration. Federal Express Corp. v.

California Public Utilities Comm’n., 936 F.2d 1075, 1076 (9 Cir. 1991). The Carmack th

Amendment is not applicable to air carriers such as FedEx. Arkwright-Boston Mfg. Mut. Ins.

Co. v. Greater Western Airways, Inc., 767 F.2d 425, 427-28 (8 Cir. 1985); Williams v. Fed. th

Express Corp., No. CV-99-06252, 1999 WL 1276558 * 3 (C.D.Cal. Oct. 6, 1999). For these

reasons, the court finds that plaintiff has failed to state a colorable claim against defendant

FedEx.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s claims against defendants Tapia and Smith for destruction of

plaintiff’s typewriter and the claims against defendant Fed Ex, Inc. are dismissed with leave to

file an amended complaint within thirty days from the date of service of this order. Failure to file

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an amended complaint will result in a recommendation that these defendants be dismissed from

this action.

2. Upon filing an amended complaint or expiration of the time allowed therefor,

the court will make further orders for service of process upon some or all of the defendants.

DATED: 6/23/06

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

an1107.ame

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