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United States District Court

Eastern District of California

Brady Armstrong,

Plaintiff, No. Civ. S 04-2136 GEB PAN P

vs. Findings and Recommendations

D. L. Runnels, et al.,

Defendants.

-oOoPlaintiff is a prisoner, without counsel, prosecuting this

civil rights action in forma pauperis. See 42 U.S.C. § 1983. 

Plaintiff filed a first-amended complaint June 14, 2005. 

I have reviewed plaintiff’s first-amended complaint pursuant

to 28 U.S.C. § 1915A and find it fails to state a claim for

relief.

To state a claim under 42 U.S.C. § 1983, plaintiff must

allege an identified defendant deprived plaintiff of a right

secured to him by the Constitution or laws of the United States 

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while acting under color of state law. West v. Atkins, 487 U.S.

42, 48-49 (1988).

Prison officials do not violate the Due Process Clause or

the Fourteenth Amendment by taking a prisoner’s property without

authorization when, as here, state law provides an adequate post

deprivation remedy. Hudson v. Palmer, 468 U.S. 525, 533 (1984);

Hudson, 468 U.S. at 533; Parratt v. Taylor, 451 U.S. 527 (1981);

Barnett v. Centoni, 31 F.3d 813 (9th Cir. 1994) (holding that

Cal. Gov’t Code § 810 provides such a remedy).

Plaintiff alleges defendants Garcia, Jimenez and Pontarol

confiscated his personal property. Assuming the taking to be

unauthorized, plaintiff cannot state a claim for relief.

A prisoner who claims denial of access to the courts must

allege that on a specific day an identified state actor deprived

the prisoner of his right to access to the courts by refusing to

assist plaintiff prepare and file a habeas corpus petition or

section 1983 complaint either by allowing meaningful access to an

adequate law library or assistance from persons trained in the

law and that the deprivation caused a specific, actual injury to

the prisoner’s habeas or section 1983 litigation efforts. Lewis

v. Casey, 518 U.S. 343 (1996). 

Plaintiff alleges defendants Garcia, Jimenez and Pontarol

confiscated his legal property. But plaintiff fails to allege

injury and so fails to state a claim.

To state a claim for violation of the federal constitutional

guarantee of due process of law, a prisoner must allege that an

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identified state actor denied plaintiff a specific right

protected by the federal constitution without procedures required

by the constitution to ensure fairness, specifying the omission.

Sandin v. Connor, 515 U.S. 472, 483-84 (1995). A prisoner has no

legitimate claim of entitlement to a grievance procedure. Mann v.

Adams, 855 F.2d 639, 640 (9th Cir.), cert. denied, 488 U.S. 898

(1988).

Plaintiff alleges defendants Garcia, Jimenez, and Pontarol

have refused to process his grievances. Plaintiff fails to state

a claim.

A prisoner who claims his Eighth Amendment guarantee against

cruel and unusual punishment has been violated by inadequate

medical care must allege that on a specific day an identified

state actor with individual responsibility for obtaining or

providing medical care knew the prisoner faced substantial risk

of serious harm but deliberately disregarded the risk by failing

to take reasonable measures resulting in avoidable persistent

severe pain or avoidable substantial personal injury. Farmer v.

Brennan, 511 U.S. 825, 837 (1994); Estelle v. Gamble, 429 U.S.

97, 106 (1976).

Plaintiff claims defendants Levin, Correa, Sands, Barton,

Watkins, Roche and Rohlfing violated his right to adequate

medical care but makes no specific allegations against them. 

Plaintiff therefore fails to state a claim.

For these reasons, I hereby recommend the following:

1. Plaintiff’s Due Process and Fourth Amendment claims

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against Garcia, Jimenez, and Pontarol be dismissed with

prejudice;

2. Plaintiff’s access to courts claim against Garcia,

Jimenez, and Pontarol be dismissed without prejudice;

3. Claims against Levin, Correa, Sands, Barton, Watkins,

Roche and Rohlfing be dismissed without prejudice.

Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Within 20 days after being

served with these findings and recommendations, plaintiff may

file written objections. The document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” 

The district judge may accept, reject, or modify these findings

and recommendations in whole or in part.

Dated: September 6, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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