Paul Hupp v. County of San Diego

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 24, 2019
• Docket: 16-56879
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PAUL HUPP, No. 16-56879

Plaintiff-Appellant, D.C. No. 5:14-cv-00576-VAP-SP

v. MEMORANDUM* COUNTY OF SAN DIEGO; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding

Submitted September 18, 2019**

Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.

Former California state prisoner Paul Hupp appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional

claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Hebbe

v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed. R. Civ. P.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 12(b)(6)); Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009) (dismissal under

Fed. R. Civ. P. 12(c)). We may affirm on any basis supported by the record.

Kohler v. Bed Bath & Beyond of Cal., LLC, 780 F.3d 1260, 1263 (9th Cir. 2015).

We affirm.

Dismissal of Hupp’s claims related to the County of San Diego’s failure to

transfer promptly his inmate trust account funds was proper because Hupp failed to

allege facts sufficient to show that County policymakers had actual or constructive

notice that this failure was “substantially certain to result in the violation of

constitutional rights . . . .” Castro v. County of Los Angeles, 833 F.3d 1060, 1076

(9th Cir. 2016) (discussing requirements to establish municipal liability).

Dismissal of Hupp’s due process claims related to the donation of his

property was proper because Hupp had an adequate post-deprivation remedy under

California law, and Hupp failed to allege facts sufficient to show that the

policymaker responsible for the policy in question knew or should have known that

the policy’s enforcement would inflict a constitutional injury. See Logan v.

Zimmerman Brush Co., 455 U.S. 422, 436 (1982) (explaining that when “it is the

state system itself that destroys a complainant’s property interest” the challenge is

to the “established state procedure that destroys his entitlement without according

2 16-56879 him proper procedural safeguards” (internal quotation marks omitted)); Jones v.

Williams, 297 F.3d 930, 934 (9th Cir. 2002) (explaining personal participation

requirement); Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (California

law provides an adequate post-deprivation remedy for property loss).

The district court properly dismissed Hupp’s unlawful seizure claim because

the Fourth Amendment does not protect an inmate from the seizure, conversion, or

destruction of his property. See Taylor v. Knapp, 871 F.2d 803, 806 (9th Cir.

1989).

Dismissal of Hupp’s due process and deliberate indifference claims related

to the 90-day diagnostic evaluation was proper because Hupp failed to allege facts

sufficient to show that he was not provided with the process he was due, or that

Johnwell, Flesock, or Rigsby knew of and disregarded an excessive risk to Hupp’s

health or safety. See Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994)

(conditions of confinement claim requires showing that prisoner was subjected to a

sufficiently serious deprivation and that defendants knew of and disregarded an

excessive risk to prisoner’s health or safety); Krainski v. Nev. ex. rel. Bd. of

Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 970 (9th Cir. 2010) (elements

of procedural due process claim).

3 16-56879 Dismissal of Hupp’s challenges to Cal. Penal Code § 1203.03 was proper

because Hupp lacks standing to bring these claims. See Alvarez v. Hill, 667 F.3d

1061, 1064 (9th Cir. 2012) (an inmate’s release from prison moots any claims for

injunctive or declaratory relief relating to the prison’s policies).

The district court properly dismissed Hupp’s claims for denial of access to

the courts because Hupp failed to allege facts sufficient to show he suffered an

actual injury. See Christopher v. Harbury, 536 U.S. 403, 415 (2002) (requirements

for denial of access to courts claim).

Dismissal of Hupp’s claim concerning the light in his cell was proper

because Hupp failed to allege facts sufficient to show that the deprivation he

suffered was sufficiently serious. See Farmer, 511 U.S. at 834, 837.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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