Barber v. Walker

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 DANNY JOE BARBER, III, 9 Plaintiff, CASE NO. 3:24-cv-05634-RSM-BAT 10 v. REPORT AND RECOMMENDATION 11 T. WALKER, and KITSAP COUNTY SHERRIFF'S DEPARTMENT , 12 Defendant. 13 On July 29, 2024, Plaintiff, Danny Joe Barber, III, filed a prisoner § 1983 complaint 14 alleging Defendants T. Walker, a corrections officer and the Kitsap County Jail failed to preserve 15 Plaintiff’s property and also denied him a proper grievance process. Dkts. 1-1, 8. The Court must 16 review complaints filed by detainees under 28 U.S.C. § 1915A(a), and must “dismiss the 17 complaint, or any portion of the complaint, if it is: (1) frivolous, malicious, or fails to state a 18 claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is 19 immune from such relief.” § 1915A(b); accord § 1915(e)(2); Barren v. Harrington, 152 F.3d 20 1193, 1194 (9th Cir. 1998). 21 The Court has reviewed the complaint and recommends it be DISMISSED with prejudice 22 for the reasons below. Leave to amend should be denied because no amendment would cure the 23 barriers to relief currently, and thus amendment would be futile. See Lucas v. Dep’t of 1 Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per curiam) (the Court may deny leave to amend 2 if “it is absolutely clear that no amendment can cure the defect.”). 3 DISCUSSION 4 A. The Complaint

5 The Complaint alleges “4th Amdt. deprivation to secure evidence and denial of proper 6 grievance process.” See Complaint, Dkt. 8 at 3. Specifically, Plaintiff alleges: 7 T. Walker destroyed evidence that was deframental to my civil suit KCO is violating my civil rights Month of June 2024, Kitsap 8 County Jail noon on the month of June. Mental anguish incurred by T. Walker witnesses by officer Davenport & witnessed by all of 9 C-pod @ lunch when I repeatedly stated T. Walker was destroying evidence for my case. Headache, anxiety and night terrors due to 10 this situation I’m receiving mental health treatment now on RX. I am requesting $800 K for the damages to my health and wellbeing. 11 Id. at 4-5. 12 B. Legal Standards 13 To avoid dismissal, a § 1983 complaint must contain sufficient factual matter, accepted 14 as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 664 15 (2009). The factual allegations must be “enough to raise a right to relief above the speculative 16 level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint may be 17 dismissed if it lacks a cognizable legal theory or states insufficient facts to support a cognizable 18 legal theory. Zixiang v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013). 19 To sustain a § 1983 civil rights claim, Plaintiff must show (1) he suffered a violation of 20 rights protected by the Constitution or created by federal statute, and (2) the violation was 21 proximately caused by a person acting under color of state or federal law. West v. Atkins, 487 22 U.S. 42, 48 (1988); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To satisfy the 23 second prong, Plaintiff must allege facts showing how individually named defendants caused or 1 personally participated in causing the harm alleged in the complaint. Arnold v. IBM, 637 F.2d 2 1350, 1355 (9th Cir. 1981). A defendant cannot be held liable solely on the basis of supervisory 3 responsibility or position. Monell v. Department of Social Servs., of City of New York, 436 U.S. 4 658, 691–94 (1978). Rather, a plaintiff must allege a defendant’s own conduct violated the

5 plaintiff’s civil rights. City of Canton, Ohio v. Harris, 489 U.S. 378, 385–90 (1989). 6 C. Deprivation of Property Claims 7 Plaintiff alleges his rights were violated because Defendant Walker destroyed his 8 property. However, where a prisoner alleges deprivation of property by the unauthorized acts of 9 state officials, either negligent or intentional, he cannot state a constitutional claim where an 10 adequate state post-deprivation remedy exists. See Zinermon v. Burch, 494 U.S. 113, 129–32 11 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding unauthorized negligent or 12 intentional deprivation of property does not violate due process if a meaningful post-deprivation 13 remedy is available); Parratt v. Taylor, 451 U.S. 527, 535–44 (1981) (negligent loss of prisoner's 14 hobby kit), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330–31

15 (1986). 16 The Ninth Circuit has specifically held that an adequate post-deprivation remedy for 17 confiscated property is available in the State of Washington through, for example, the 18 Washington State Tort Claims Act, R.C.W. § 4.92.090. Joshua v. Newell, 871 F.2d 884, 887 (9th 19 Cir. 1989). Similarly, under Washington law, “all local governmental entities ... shall be liable 20 for damages arising out of their tortious conduct.” R.C.W § 4.96.010. As plaintiff has an 21 adequate Washington post-deprivation remedy for the alleged wrongful taking of his property his 22 § 1983 complaint fails and should be dismissed with prejudice. 23 // 1 D. Physical Harm Requirement 2 Plaintiff’s complaint alleges the deprivation of his property has caused him emotional 3 harm for which he is now receiving mental health treatment. There are no allegations that 4 Defendants physically harmed him in any way and thus the complaint fails to set forth sufficient

5 facts to obtain the remedy sought – money damages for emotional harms. This conclusion flows 6 from the fact that the Prison Litigation Reform Act requires an incarcerated plaintiff (whether 7 already convicted or a pretrial detainee) to prove a “physical injury” as a condition of recovering 8 compensatory damages for mental or emotional harms. 42 U.S.C. § 1997e(e). 9 E. Grievance Procedures 10 Plaintiff also alleges a “denial of proper grievance process.” Dkt. 8 at 6. He also avers he 11 “wrote over a dozen grievances & requests. Was unable to proceed through the grievance 12 process.” Id at 7. Prisoners lack a separate constitutional entitlement to a specific prison 13 grievance procedure, and hence Defendant’s handling of the grievances that plaintiff submitted 14 fails to state a claim upon which relief may be granted. See, e.g., Ramirez v. Galaza, 334 F.3d

15 850, 860 (9th Cir. 2003) (“Ramirez’s claimed loss of a liberty interest in the processing of his 16 appeals does not satisfy this standard, because inmates lack a separate constitutional entitlement 17 to a specific prison grievance procedure.”) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 18 1988)); see also Ewalan v. St. Germain, No. 22-36005, 2024 WL 3325533 (9th Cir. 2024) 19 (“Summary judgment was proper for defendant Dahne on the claim alleging deficiencies in the 20 grievance process because ‘inmates lack a separate constitutional entitlement to a specific prison 21 grievance procedure.’”). Accordingly, plaintiff’s allegations regarding the grievances he 22 submitted to Defendants and lack of a “proper procedure” do not state a claim upon which relief 23 may be granted and should be dismissed with prejudice. 1 2 OBJECTIONS AND APPEAL 3 This Report and Recommendation is not an appealable order. Therefore, Plaintiff should 4 not file a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit until the

5 assigned District Judge enters a judgment in the case. 6 Objections, however, may be filed no later than September 20, 2024. The Clerk shall 7 note the matter for September 27, 2024, as ready for the District Judge’s consideration. The 8 failure to timely object may affect the right to appeal. 9 DATED this 6th day of September, 2024. 10 A 11 BRIAN A. TSUCHIDA United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23