FILED
NOT FOR PUBLICATION JUN 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTHONY BRAZIER, No. 12-17475
Plaintiff - Appellant, D.C. No. 2:12-cv-00883-CKD
v.
MEMORANDUM *
CALIFORNIA DEPARTMENT OF
CORRECTION AND
REHABILITATION; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Carolyn K. Delaney, Magistrate Judge,** Presiding
Submitted June 10, 2013 ***
Before: HAWKINS, McKEOWN, and BERZON, Circuit Judges.
California state prisoner Anthony Brazier appeals pro se from the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Brazier consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging a due process
claim arising from the removal of erroneously-issued tax refunds from his inmate
trust account. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.
2000). We affirm in part, vacate in part, and remand.
The district court properly dismissed Brazier’s due process claim against the
California Department of Correction and Rehabilitation because the claim was
barred by sovereign immunity under the Eleventh Amendment. See Taylor v. List,
880 F.2d 1040, 1045 (9th Cir. 1989) (stating that a state’s sovereign immunity
against being sued in federal court applies to its agencies, including the department
of prisons).
The district court properly dismissed Brazier’s due process claim against
defendant Salinas because Brazier failed to allege that defendant Salinas personally
participated in, directed, or knowingly failed to prevent the alleged due process
violation. See id. (setting forth the standard for liability against supervisory
personnel under § 1983).
Dismissal of Brazier’s due process claim against defendants Rackey and
Rodriguer was proper because prisoners lack a separate constitutional entitlement
to a specific prison grievance system. See Ramirez v. Galaza, 334 F.3d 850, 860
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(9th Cir. 2003) (no due process claim is cognizable from the claimed loss of a
liberty interest in defendants’ processing of inmate appeals).
However, dismissal without leave to amend of Brazier’s due process claim
against defendant Miramentes was improper because the procedural protections of
the Fourteenth Amendment apply to protect a significant property interest even if
there is a dispute over ownership. See Sanders v. City of San Diego, 93 F.3d 1423,
1426-27 (9th Cir. 1996) (concluding that pawnbroker has standing to assert
procedural due process claim because of his colorable contractual ownership
interest in items that were stolen before being pawned at his shop). Therefore, we
remand for the sole purpose of allowing Brazier to amend his due process claim
against defendant Miramentes to allege that Brazier did, in fact, have an ownership
interest in the tax refunds credited to his inmate trust account, absent which
allegation Brazier’s claim must fail. See Neal v. Shimoda, 131 F.3d 818, 827 (9th
Cir. 1997) (the procedural guarantees of the Due Process Clause only apply where
a constitutionally protected liberty or property interest is at stake).
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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