Opinion
Case No. 2:20-cv-02178-YY
02-16-2021
COLBY APLIN; ROBIN VICKIO; and JIM WARBERG, Plaintiff, v. OREGON STATE HOSPITAL, Defendant.
ORDER TO DISMISS
Plaintiff Cory Aplin, an adult in custody at the Multnomah County Inverness Jail who was previously a patient at the Oregon State Hospital ("OSH"), brings this civil rights action pursuant to 42 U.S.C. § 1983. Pursuant to an Order entered this date, the Court granted plaintiff's Application to Proceed In Forma Pauperis. However, for the reasons set forth below, the Court dismisses plaintiff Aplin's Complaint.
BACKGROUND
Plaintiff Cory Aplin purports to bring this action on his own behalf and on behalf of two additional individuals. The court notes, however, that only plaintiff Aplin has submitted an Application to Proceed In Forma Pauperis, and it appears that plaintiff Aplin signed the Complaint on behalf of the two other individuals. Plaintiff Aplin alleges that a package sent by his family to OSH containing clothing went missing and plaintiff did not receive the package. By way of remedy, plaintiff Aplin seeks money damages.
STANDARDS
A district court must dismiss an action initiated by a prisoner seeking redress from a governmental entity or officer or employee, if the Court determines that the action (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2) & 1915A(b). When a plaintiff is proceeding pro se, the court must construe the pleadings liberally and afford the plaintiff the benefit of any doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Moreover, before dismissing a pro se civil rights complaint for failure to state a claim, the court supplies the plaintiff with a statement of the complaint's deficiencies. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623-24 (9th Cir. 1988); Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro se litigant will be given leave to amend his or her complaint unless it is clear that the deficiencies of the complaint cannot be cured by amendment. Karim-Panahi, 839 F.2d at 623; Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).
DISCUSSION
I. Procedural Deficiencies
As noted, it appears Plaintiff Aplin signed the Complaint on behalf of the other named plaintiffs. Because a pro se Plaintiffs cannot represent the rights of the other individual Plaintiffs, the Court dismisses the remaining plaintiffs. See Storseth v. Spellman, 654 F.2d 1349, 1355 (9th Cir. 1981) (a non-lawyer may not file papers with the court or otherwise represent the rights of another pro se litigant); C.E. Pope Equity Trust v. United States, 818 F.2d 696 (9th Cir. 1987) (same).
II. Substantive Deficiencies
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). A plaintiff must also allege that he suffered a specific injury as a result of a particular defendant's conduct and an affirmative link between the injury and the violation of his rights. See Monell v. Dep't of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).
The Due Process Clause of the Fourteenth Amendment of the United States Constitution protects a person from being deprived of property without due process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and plaintiff has a protected interest in her personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). Authorized, intentional deprivations of property are actionable under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), but the Due Process Clause is violated only when the agency "prescribes and enforces forfeitures of property without underlying statutory authority and competent procedural protections," Nevada Dept. of Corrections v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (citing Vance v. Barrett, 345 F.3d 1083, 1090 (9th Cir. 2003)) (internal quotations omitted). The Due Process Clause is not, however, violated by the random, unauthorized deprivation of property so long as the state provides an adequate post-deprivation remedy. Hudson, 468 U.S. at 533; Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994).
Plaintiff Aplin's claim that his personal property was not delivered to him fails to allege facts sufficient to state a cognizable Fourteenth Amendment violation for the deprivation of property. Plaintiff Aplin's property claim may be actionable under state law, but such a claim must be brought in state court rather than federal court. Oregon provides an adequate post-deprivation remedy in the form of the Oregon Tort Claims Act, Or. Rev. Stat. § 30.260 et seq. See Osborne v. Williams, 444 Fed. Appx. 153 (9th Cir. 2011); Cervantes v. Defendant, Case No. 2:20-cv-00105-AC, 2020 WL 1531130, at *2 (D. Or. March 31, 2020). Accordingly, plaintiff Aplin fails to state a due process claim upon which relief may be granted under § 1983.
Moreover, plaintiff Aplin names as the sole defendant the Oregon State Hospital. The Eleventh Amendment preserves the sovereign immunity of the states by providing the judicial power of the United States "shall not be construed to extend to any suit in law or equity, commenced or prosecuted" against a state. "The Eleventh Amendment bars suits against the State or its agencies for all types of relief, absent unequivocal consent by the state. The Eleventh Amendment jurisdictional bar applies regardless of the nature of relief sought and extends to instrumentalities and agencies." Krainski v. Nevada ex rel. Bd. of Regents of Nevada Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (internal quotations and citations omitted); see also McCall v. Oregon, Case No. 3:12-cv-00465-PK, 2013 WL 6196966, at *8 (D. Or. Nov. 13, 2013) ("[t]he State of Oregon has not waived it immunity" in § 1983 cases). Because the state and its agency are immune from a § 1983 suit for damages, plaintiff Aplin's claim must be dismissed.
CONCLUSION
Based on the foregoing, the Court DISMISSES the Complaint. Plaintiff Aplin may file an Amended Complaint, curing the deficiencies noted above, within 30 days of the date of this order. Plaintiff Aplin is advised that failure to file an Amended Complaint shall result in the dismissal of this proceeding, with prejudice.
IT IS SO ORDERED.
DATED this 16 day of February, 2021.
/s/_________
Marco A. Hernández
Chief United States District Judge