Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID ELLIOT NICHOLAS, Case No.: 26-cv-04037-BJC-JLB CDCR #AX-5719, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO vs. STATE A CLAIM PURSUANT 14 TO 28 U.S.C. § 1915A(b)(1) AND 15 DENYING MOTIONS TO RJ DONOVAN CORRECTIONAL PROCEED IN FORMA 16 FACILITY; CALIFORNIA PAUPERIS AND TO APPOINT DEPARTMENT OF CORRECTIONS 17 COUNSEL AS MOOT AND REHABILITATION (CDCR);

18 R&R CORRECTIONAL OFFICERS, [ECF Nos. 2, 3] 19 Defendants. 20 21 Plaintiff David Elliot Nicholas, who is proceeding pro se and incarcerated at Richard 22 J. Donovan Correctional Facility (“RJD”) in San Diego, California, has filed a civil rights 23 complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1), together with a motion 24 to proceed In Forma Pauperis (“IFP”) (ECF No. 2), and a motion to appoint counsel. (ECF 25 No. 3). Nicholas claims unidentified correctional officials at RJD lost his personal property 26 after he was temporarily transferred to the California Medical Facility (“CMF”) in August 27 2025. See Compl. at 3. He seeks $40 million in general and punitive damages. Id. at 7. 28 /// 1 For the reasons explained, the Court DISMISSES Nicholas’s complaint sua sponte 2 for failing to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. 3 § 1915A(b)(1). Because the Court finds amendment would be futile, it DENIES Nicholas’s 4 motions to proceed IFP and appoint counsel as moot. 5 I. SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915A(b) 6 A. Standard of Review 7 Section 1915A(a) “mandates early review— ‘before docketing [] or [] as soon as 8 practicable after docketing’—for all complaints ‘in which a prisoner seeks redress from a 9 governmental entity or officer or employee of a governmental entity.’” Chavez v. Robinson, 10 817 F.3d 1162, 1168 (9th Cir. 2016). The mandatory screening provisions of § 1915A 11 apply to all prisoners, no matter their fee status, who bring suit against a governmental 12 entity, officer, or employee. See, e.g. Resnick v. Hayes, 213 F.3d 443, 446–47 (9th Cir. 13 2000). “On review, the court shall … dismiss the complaint, or any portion of the 14 complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may 15 be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 16 Olivas v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017) (quoting 28 17 U.S.C. § 1915A(b)). 18 “The standard for dismissal for prisoner claims at screening is the ‘same as the 19 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.’” Long v. 20 Sugai, 91 F.4th 1331, 1336 (9th Cir. 2024) (quoting Watison v. Carter, 668 F.3d 1108, 21 1112 (9th Cir. 2012) (citation omitted)); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 22 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar 23 standard applied in the context of failure to state a claim under Federal Rule of Civil 24 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual 25 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 26 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 27 1121. A complaint fails to state a claim if it lacks a “cognizable legal theory” or “sufficient 28 facts … to support a cognizable legal theory.” Shroyer v. New Cingular Wireless Servs., 1 Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v. Block, 250 F.3d 729, 732 2 (9th Cir. 2001)). Detailed factual allegations are not required, but “[t]hreadbare recitals of 3 the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 4 Iqbal, 556 U.S. at 678. And while the court “ha[s] an obligation where the petitioner is pro 5 se, particularly in civil rights cases, to construe the pleadings liberally and to afford the 6 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 7 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply 8 essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. 9 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 10 B. Factual Allegations 11 Nicholas alleges that on August 22, 2025, he was transferred from RJD to CMF and 12 temporarily hospitalized there. See Compl. at 3. As a result, his personal property was 13 “rolled up” and “supposedly … safely stored.” Id. When he returned to RJD, however, 14 unidentified officers in RJD’s Receiving & Release (“R&R”) unit searched “high and low” 15 for his property, but “to this day none of it has ever been found.” Id. Nicholas claims the 16 negligent loss of “everything [he] had accumulated since August of 2015” sent him 17 “spiraling into deep depression.” Id. 18 C. Discussion 19 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 20 elements: (1) that a right secured by the Constitution or laws of the United States was 21 violated, and (2) that the alleged violation was committed by a person acting under the 22 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 23 1035‒36 (9th Cir. 2015). 24 Nicholas does not identify the basis for any constitutional violation, but his sole 25 claim is that unidentified RJD officials who were responsible for safeguarding and safely 26 storing his property during a hospital stay lost his personal belongings. Prisoners have a 27 protected interest in their personal property. Hansen v. May, 502 F.2d 728, 730 (9th Cir. 28 1974). However, Nicholas has no viable Fourteenth Amendment due process claim based 1 |}on Defendants’ allegedly unauthorized deprivation of his belongings—whether intentional 2 ||or negligent—if a meaningful state post-deprivation remedy for his loss is available. See 3 || Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n unauthorized intentional deprivation 4 property by a state employee does not constitute a violation of the procedural 5 ||requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful 6 || post-deprivation remedy for the loss is available.”). California’s tort claim process provides 7 ||that adequate post-deprivation remedy. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 8 || 1994) (citing Cal. Gov’t Code §§ 810-895) (“[A] negligent or intentional deprivation of a 9 || prisoner’s property fails to state a claim under section 1983 if the state has an adequate post 10 || deprivation remedy.’’); see also Richardson v. Medina, 2026 WL 1759668, at *4 (E.D. Cal. 11 || June 18, 2026) (dismissing sua sponte prisoner’s due process claims against prison officials 12 “responsible for packing his missing personal property” pursuant to Hudson & Barnett 13 ||because he had an adequate post-deprivation remedy under California law), report and 14 || recommendation adopted, 2026 WL 2032175 (E.D. Cal. July 14, 2026); Kemp v. Skolnik, 15 |}2012 WL 366946, at *6 (D. Nev. Feb. 3, 2012) (finding prisoner’s alleged loss or 16 || destruction of newspaper, magazines, and books failed to state a Fourteenth Amendment 17 ||claim pursuant to Hudson and noting that “[i]f Plaintiff wishes to recoup the value of the 18 || alleged lost materials, he will have to file a claim in small claims court in state court.”). 19 ||]. CONCLUSION 20 Accordingly, the Court DISMISSES Nicholas’s complaint for failing to state a 21 ||claim pursuant to 28 U.S.C. § 1915A(b)(1). Because amendment and pursuit of his lost 22 || property claims in federal court would be futile, the Court DENIES Nicholas’s motions to 23 || proceed IFP and to appoint counsel (ECF Nos. 2, 3) as moot and DIRECTS the Clerk to 24 enter a final judgment of dismissal and close the file. 25 IT IS SO ORDERED. 26 || Dated: September 20, 2026 6 fOr Ob 2 fa 27 Honorable Benjamin J. Cheeks 28 United States District Judge