FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
KEITH STRONG, Magistrate Judge.
Plaintiff Shane McClanahan alleges Defendants violated his Eighth Amendment and Due Process rights under the United States Constitution during his incarceration at the Great Falls Regional Prison and Montana State Prison. Mr. McClanahan's allegations fail to state a claim upon which relief may be granted because the allegations do not allwge specific conduct by the Defendants and do not implicate a liberty interest. This matter should be dismissed.
Mr. McClanahan filed this action in federal court, in the Helena Division of the District of Montana. CD 2. The Court has personal jurisdiction over the parties, all of whom are found in Montana. Fed.R.Civ.P. 4(k)(1)(A); Mont. R. Civ. P. 4(b). Read liberally, the Amended Complaint may attempt to allege violations under 42 U.S.C. § 1983, invoking subject matter jurisdiction. 28 U.S.C. § 1331, 28 U.S.C. § 1343(a). The case was assigned to Hon. Dana L. Christensen, United States District Court Judge, and referred to this Court in compliance with Local Rule 73.1(a)(1).
Mr. McClanahan is a prisoner proceeding in forma pauperis and his Complaints are therefore subject to review before service under 28 U.S.C. § 1915, 1915A. A pre-service review of Mr. McClanahan's original Complaint found that it failed to state a claim upon which relief may be granted. Mr. McClanahan was granted leave to amend his Complaint (CD 9) and on April 23, 2013, he filed an Amended Complaint. CD 10. The Amended Complaint must be dismissed upon review if it is found to be frivolous, fails to state a claim, or seeks monetary damage from an immune party. 28 U.S.C. §§ 1915, 1915A.
"A document filed pro se is to be liberally construed, ' and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers'." Erickson v. Pardus , 551 U.S. 89, 94 (2007) (internal citation omitted); cf. Fed.R.Civ.P. 8(f) ("All pleadings shall be so construed as to do substantial justice").
A. Pleading Standard
A complaint must allege sufficient factual matter to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Plausibility is less than probability, but requires "more than a sheer possibility that a defendant has acted unlawfully." Id . Pleadings that are no more than conclusions are not entitled to the presumption of truth and may be disregarded. Id. at 679. A plaintiff must plead the essential elements of a claim to avoid dismissal for failure to state a claim. Ivey v. Board of Regents , 673 F.2d 266, 268 (9th Cir. 1982).
B. Leave to amend
Leave to amend a complaint should be given freely "when justice so requires." Fed.R.Civ.P. 15. However, a district court should dismiss a complaint without granting leave to amend if amendments would be futile. Klamath Lake Pharmaceutical Ass'n v. Klamath Medical Services Bureau , 701 F.2d 1276, 1293 (9th Cir. 1983). "Leave to amend need not be given if a complaint, as amended, would be subject to dismissal." Moore v. Kayport Package Exp., Inc. , 885 F.2d 531, 538 (9th Cir. 1989). The court liberally construes pro se pleadings. See Eldridge v. Block , 832 F.2d 1132, 1137 (9th Cir. 1987). "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." Lucas v. Dep't of Corr. , 66 F.3d 245, 248 (9th Cir. 1995).
C. 42 U.S.C. § 1983
The Due Process Clause of the Fourteenth Amendment protects prisoners from being deprived of life, liberty, or property without due process of law. Wolff v. McDonnell , 418 U.S. 539, 556 (1974). In order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a protected interest.
In the prison setting, a liberty interest is recognized and protected only if state officials or employees take actions that either (1) affect the sentence imposed upon conviction in an unexpected manner, or (2) impose a hardship that is atypical and significant in relation to the ordinary incidents of prison life. Sandin v. Conner , 515 U.S. 472, 483-84 (1995); Ramirez v. Galaza , 334 F.3d 850, 860 (9th Cir. 2003). Whether a hardship is "atypical and significant" depends on three factors:
1) whether the challenged condition mirrored those conditions imposed upon inmates in administrative segregation and protective custody, ' and thus comported with the prison's discretionary authority; 2) the duration of the condition, and the degree of restraint imposed; and 3) whether the state's action will invariably affect the duration of the prisoner's sentence.
Ramirez , 334 F.3d at 861 (citing Sandin , 515 U.S. at 486-87); see also Myron v. Terhune , 476 F.3d 716, 718 (9th Cir. 2007). A failure to follow prison procedures does not, in and of itself, give rise to a liberty interest. Sandin , 515 U.S. at 483.
Prisoners also have a protected interest in their personal property. Hansen v. May , 502 F.2d 728, 730 (9th Cir. 1974). But neither negligent nor unauthorized intentional deprivations of property by a state employee "constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available." Hudson v. Palmer , 468 U.S. 517, 533 (1984). If a state employee loses or steals an inmate's property and the state provides a meaningful post-deprivation remedy, there is no claim under the Due Process Clause. Id . The Montana Tort Claims Act, Mont. Code Ann. §§ 2-9-101, et seq., provides a post-deprivation remedy.
Cruel and Unusual Punishment
A plaintiff alleging that conditions of confinement amount to cruel and unusual punishment prohibited by the Eighth Amendment must satisfy a two-prong test. Wilson v. Seiter , 501 U.S. 294, 298 (1991). First, a plaintiff must satisfy an objective test showing that "he is incarcerated under conditions posing a substantial risk of serious harm." Farmer v. Brennan , 511 U.S. 825, 834 (1994). In determining whether a deprivation of a basic necessity is sufficiently serious to satisfy the objective component of an Eighth Amendment claim, courts consider the circumstances, nature, and duration of the deprivation. Johnson v. Lewis , 217 F.3d 726, 731 (9th Cir. 2000). Second, a plaintiff must prove that the prison official inflicted the deprivation with a "sufficiently culpable state of mind, " that is, with "deliberate indifference" to his health or safety. Farmer , 511 U.S. at 834.
Denial of Mental Health Care
To state a § 1983 claim for failure to provide medical care, including mental health care, a prisoner must allege a defendant's "acts or omissions [were] sufficiently harmful to evidence a deliberate indifference to serious medical needs." Estelle v. Gamble , 429 U.S. 97, 106 (1976); Toussaint v. McCarthy , 801 F.2d 1080, 1111 (9th Cir. 1986).
In the Ninth Circuit, the test for deliberate indifference to medical needs is two-pronged: (1) "the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain"; and (2) "the plaintiff must show the defendant's response to the need was deliberately indifferent." Wilhelm v. ...