Donald Lee v. Brier Police Department

NOT FOR PUBLICATION FILED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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