Donald Lee v. Brier Police Department , 684 F. App'x 666 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD MORRIS LEE, No. 15-35794
Plaintiff-Appellant, D.C. No. 2:14-cv-01994-MJP
v.
MEMORANDUM*
BRIER POLICE DEPARTMENT; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Washington state prisoner Donald Morris Lee appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging violations
of his constitutional rights. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007)
*
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).
(dismissal under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194
(9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)). We may
affirm on any basis supported by the record. Johnson v. Riverside Healthcare Sys.,
LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm in part, vacate in part, and
remand.
The district court properly dismissed Lee’s claims related to his arrest and
criminal conviction because success on those claims “would necessarily imply the
invalidity of his conviction or sentence” and Lee has not “demonstrate[d] that the
conviction or sentence has already been invalidated.” Heck v. Humphrey, 512 U.S.
477, 487 (1994).
Dismissal of Lee’s claims against the judge and prosecutor in his criminal
case was proper because Lee failed to allege facts sufficient to state a plausible
§ 1983 claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although
pro se pleadings are construed liberally, a plaintiff must present factual allegations
sufficient to state a plausible claim for relief); see also West v. Atkins, 487 U.S. 42,
48 (1988) (elements of a claim under § 1983).
The district court properly dismissed Lee’s access-to-courts claim regarding
denial of mail because Lee failed to allege facts sufficient to show that defendants’
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conduct caused actual injury to a nonfrivolous legal claim. See Lewis v. Casey,
518 U.S. 343, 348-49, 352-53 (1996); see also Turner v. Safley, 482 U.S. 78, 89
(1987) (a regulation that impinges on First Amendment rights “is valid if it is
reasonably related to legitimate penological interests.”).
The district court properly dismissed Lee’s due process claim based on
deprivation of his property because Lee has an adequate postdeprivation remedy
under Washington law. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n
unauthorized intentional deprivation of property by a state employee does not
constitute a violation of the procedural requirements of the Due Process Clause of
the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is
available.”); Wright v. Riveland, 219 F.3d 905, 918 (9th Cir. 2000) (concluding
that Washington provides adequate postdeprivation remedies).
The district court properly dismissed Lee’s retaliation claim because Lee
failed to allege facts sufficient to state a claim. See Rhodes v. Robinson, 408 F.3d
559, 567-68 (9th Cir. 2005) (setting forth elements of retaliation claim in prison
context). However, dismissal of this claim without leave to amend was premature
because it is not absolutely clear that the deficiencies could not be cured by
amendment, and the district court did not notify Lee of the deficiencies in this
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claim. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is
absolutely clear that no amendment can cure the defect, . . . a pro se litigant is
entitled to notice of the complaint’s deficiencies and an opportunity to amend prior
to dismissal of the action.”). Lee alleged that he was given a disciplinary
infraction and moved to a different cell with a violent offender for no reason other
than in retaliation for filing a grievance against defendant Redding. Although Lee
did not allege that his First Amendment rights were chilled by the alleged adverse
action, he should be given an opportunity to amend prior to dismissal of this claim.
Accordingly, we vacate the judgment in part and remand to the district court with
instructions to provide Lee with an opportunity to amend as to his retaliation claim
only.
Lee’s requests for permission to use the prison’s “e-file program,”
appointment of counsel, reversal of “policies obstructing legal mail services to
indigent inmates,” and change of venue, set forth in his opening brief, are denied.
We treat Lee’s notice, filed on August 15, 2016, as a request to supplement the
record, and deny the request.
Each party shall bear its own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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