United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
J. RICHARD CREATURA, Magistrate Judge.
This 42 U.S.C. § 1983 civil rights matter has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Rules MJR 1, MJR 3, and MJR 4.
Defendants have filed a motion to dismiss (ECF No. 13). Defendants ask the Court to dismiss plaintiff's federal claim with prejudice and plaintiff's pendent state law claim without prejudice ( id. ). The Court recommends denying defendants' motion because a motion to dismiss only tests the sufficiency of the complaint and plaintiff has pled a prima facie case for both a federal denial of due process claim and a pendent state tort action.
Plaintiff alleges that on April 17, 2013 he went to the day room of his prison unit with two bottles of prayer oil so that other inmates could smell the oil and decide if they wanted to buy the same type of oil (ECF No. 6, p. 11 of 20). Plaintiff alleges that defendants Teachout and Daman confiscated the oils (ECF No. 6, p. 11 of 20). Plaintiff alleges that defendants, acting pursuant to Department of Correction's policy 420.375, destroyed the oils and that plaintiff was never given an opportunity to mail the oils out of the facility or contest their destruction (ECF No. 6, p. 12 of 20). Plaintiff specifically references a companion case, Brown v. Warner, C09-1546RSM/BAT where a taking occurred pursuant to the same policy. Plaintiff states that in September of 2012 the District Court found that the defendants in that case abused their authority in implementing Department of Corrections policy 420.375 (ECF No. 6, p. 6). Plaintiff alleges a procedural due process violation and a state law claim (ECF No. 6, pp. 14-15).
Defendants argue that the Department of Correction's policy 420.375 played no part in defendants Teachout and Daman's decision to destroy plaintiff's oils. Defendants state that the destruction of the oils was an intentional but unforeseeable act where the state could not have given plaintiff procedural due process prior to the taking. Defendants argue that because an adequate post-deprivation remedy exists, plaintiff fails to state a claim for a denial of procedural due process (ECF No. 13, p. 3). Defendants note that plaintiff attached documentation to his complaint where state prison officials acknowledge that plaintiff's oils were discarded contrary to state law and the department's policies ( id. ). The documentation plaintiff attached to his complaint instructs plaintiff to file a state tort claim to obtain reimbursement for the oils (ECF No. 6, pp.17-18 of 20).
STANDARD OF REVIEW
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) provides that a court should dismiss a claim pursuant to Fed.R.Civ.P. 12(b)(6) either because of the lack of a cognizable legal theory or because of the absence of sufficient facts alleged under a cognizable legal theory. See, Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
For purposes of ruling on this motion, material allegations in the complaint are taken as admitted and the complaint is construed in plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295 (9th Cir. 1983). "While a complaint attacked by a Fed.R.Civ.P. 12(b)(6) motion to dismiss does not need detailed factual allegations, plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. 544, 545 (2007) (internal citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 545. Plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570. The Court liberally construes a pro se pleading but cannot supply facts to a complaint. Pena v. Gardner, 976 F.2d 469 (9th Cir. 1992).
In order to state a claim pursuant to 42 U.S.C. § 1983, a complaint must allege that: (l) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 is the appropriate avenue to remedy an alleged wrong only if both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).
A. Federal Claim.
"In determining whether a complaint states a claim, all allegations of material fact are taken as true and construed in the light most favorable to the plaintiff." Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) ( per curiam ); see also Estelle v. Gamble, 429 U.S. 97, 99 (1976). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ( quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)).
A plaintiff may not state a claim for a denial of due process if the taking is a random unauthorized act and the state provides an adequate post deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 534 (1984). Here, plaintiff alleges the taking was not random or unauthorized and he argues that the taking occurred pursuant to DOC policy 420.375 (ECF No. 6, pp. 6-12). Defendants' argues that plaintiff's allegation that the taking was pursuant to DOC policy 420.375 is conclusory. Plaintiff's complaint contains specific facts showing the taking occurred and a reference to another action where a similar taking was admittedly done ...