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Gerald Lewis Austin, #A1076082 v. Correctional Officer Van Winkle

November 28, 2011

GERALD LEWIS AUSTIN, #A1076082, PLAINTIFF,
v.
CORRECTIONAL OFFICER VAN WINKLE, CORRECTIONAL OFFICER PEPPERS, INMATE ALWYEN PADILLA, CORRECTIONAL SEARGENT SALAS DEFENDANT.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER DISMISSING COMPLAINT WITH LEAVE GRANTED TO AMEND

Before the court is pro se Plaintiff Gerald Lewis Austin's prisoner civil rights complaint. Austin is incarcerated at the Halawa Correctional Facility ("HCF") and is proceeding in forma pauperis. [ECF #4.] Austin names Adult Correctional Officer ("ACO") Van Winkle ("Van Winkle"), ACO Peppers, ACO Sergeant Salas, and inmate Alwyen Padilla ("Padilla"), as defendants, alleging that they confiscated or were otherwise responsible for the confiscation of Austin's personal property.

Austin's Complaint is DISMISSED for failure to state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1). Austin is granted leave to amend the Complaint, if possible, to cure the deficiencies detailed below.

I. STATUTORY SCREENING

The court must screen all civil actions brought by prisoners that relate to prison conditions and/or seek redress from a governmental entity, officer, or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if its claims are legally frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e (c)(1).

A complaint may be dismissed as a matter of law for failure to state a claim for (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.

The court must construe a pro se complaint liberally, accept all allegations of material fact as true, and construe those facts in the light most favorable to the plaintiff. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Leave to amend should be granted if it appears at all possible that the plaintiff can correct the defects of his or her complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

III. DISCUSSION

"To sustain an action under section 1983, a plaintiff must show '(1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right.'" Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007) (citation omitted); see also West v. Atkins, 487 U.S. 42, 48 (1988); 42 U.S.C. § 1983.

A. Austin's Claim's

Austin states that, on or about July 10, 2011, ACO Van Winkle ordered Austin and his cellmate, Padilla, to strip and submit to a cell search. See Compl., ECF #1, Count I. The cell search turned up tattooing equipment that Austin claims was Padilla's. Id. Count III. Austin states that ACO Peppers confiscated both Padilla's and Austin's personal property. Austin says that, even though Padilla has admitted that the tattooing equipment was his and has been sanctioned with thirty days in segregation, ACO Sergeant Salas refuses to return Austin's property. Austin does not complain about the strip search, but protests only the confiscation of his personal property, seeking a million dollars and the return of his property.

B. Inmate Padilla is Dismissed

Austin fails to allege any facts showing that Padilla either acted under color of state law or suggesting that Padilla violated Austin's constitutional rights. While Padilla may have possessed the paraphernalia and may therefore be somewhat responsible for the confiscation of Austin's property during the search of their cell, that does not equate to the requisite level of culpability needed to state a constitutional violation. Austin himself states that Padilla was negligent in leaving the equipment in their cell. See e.g., Daniels v. Williams, 474 U.S. 327, 328-29 (1986) (stating that ยง 1983 does not generally provide a remedy for negligence). Nor does Austin provide any facts suggesting that Padilla, an inmate, acted in concert in some way with prison officials in a ...


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