Opinion
CIVIL ACTION 99-0929-CB-M.
July 28, 2000.
REPORT AND RECOMMENDATION
Plaintiff, an Alabama inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that this action be dismissed without prejudice as frivolous, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(B)(2)(i).
The Court is relying on Plaintiff's amended complaint (Doc. 1), and Plaintiff's sworn affidavit (Doc. 5), which supersedes his original complaint (Doc. 1).
Plaintiff identified Jack Tillman, Sheriff of Mobile County, Alabama, and Rick Gaston, Warden of the Mobile County Metro Jail ("jail"), as Defendants in Section III of the complaint. Plaintiff claims that he is missing property that was taken by jail officials for safekeeping upon his arrival at the jail on October 13, 1999. Plaintiff alleges the property was taken and stored in a property room pursuant to a "new" rule implemented by Sheriff Tiliman (Doc. 2, Plaintiff's Affidavit). Plaintiff asserts that when he went to retrieve his property from storage, before his transfer back to W.E. Donaldson Correctional Facility, he was advised by an officer that an inmate had stolen his property along with property belonging to other inmates (Docs. 2, 5).
Plaintiff alleges that "county inmates had stollen (sic) property from the same property room at Mobile County Metro Jail many times before" (Doc. 5). Plaintiff claims that Defendant Tillman is responsible for the loss of his property and that Defendant Tillman was aware of previous thefts. Plaintiff identified his claim against Defendant Tillman as a claim for negligence in violation of the Fourteenth Amendment.
Plaintiff's claim against Warden Gaston is for "negligence, due process, equal protection, depriv[ation] of liberty and property" (Doc. 5). In support of these assertions, Plaintiff states that he was deprived of his property in violation of the Fourteenth Amendment. For relief, Plaintiff seeks compensatory damages for the stolen property and $5,000 for pain, suffering, and emotional distress resulting from the deprivation of his property.
II. Applicable Law.
Because Plaintiff is proceeding in forma pauperis, the Court is reviewing Plaintiff's complaint under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, the claim seeks to enforce a right which clearly does not exist, id., or there is an affirmative defense that would defeat the claim, such as the statute of limitations, Clark v. Georgia Pardons Paroles Bd., 915 F.2d 636, 640 n. 2 (11th Cir. 1990). Judges are accorded "not only the authority to dismiss [as frivolous] a claim based on indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. Moreover, a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted "only if is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).
The predecessor to this section was 28 U.S.C. § 1915(d).
III. Discussion.
A. Defendant Tillman.
The Court will discuss first the claim against Defendant Tillman, who implemented the rule that led to Plaintiff's property being held in the room from which it was stolen. plaintiff states that Defendant Tillman's rule is to hold an inmate's property in storage until the inmate is transferred from the jail. There is no allegation that the rule permanently deprived an inmate of his property.
Plaintiff claims that the deprivation of his property is based on a random theft committed by another inmate. Plaintiff does not claim that property was always taken from the property room. However, Plaintiff did allege that Defendant Tillman was negligent because he was aware of previous thefts from the property room and inmates had stolen from the property room "many times before." Nevertheless, these allegations become vague when read with Plaintiff's affidavit's specific allegations that Plaintiff was advised when he went to pick up his property that trustees had removed it, that a search which lasted several hours did not result in Plaintiff's property being found, and that inmate Johnson's and inmate Ezell's property was also discovered to be missing at that time (Doc. 2).
In Hudson v. Palmer, 468 U.S. 517, 531, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the United States Supreme Court held that the deprivation of property by persons acting under color of state law does not constitute a deprivation without due process of law where
either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the property of the State's action at some time after the initial taking . . . satisf[ies] the requirements of procedural due process. [Parratt v. Taylor,] 451 U.S. 527, 539, 101 S.Ct. 1908, 68 L.Ed.2d 420 [1981].
The Hudson court reasoned that impracticality occurs when property is lost as a result of a "random, unauthorized act by a state employee," id. at 532 (quoting Parratt, 451 U.S. at 541), as it is impossible for the State to know beforehand of the deprivation, negligent or intentional, and to provide a predeprivation hearing prior to that loss,id. at 533. When a random taking has occurred, there must be available a postdeprivation remedy that provides adequate compensation for the loss.Id. at 533-35. Some postdeprivation remedies that have satisfied due process are administrative procedures, Parratt, 451 U.S. at 543-44, or ordinary tort litigation procedures, Hudson, 468 U.S. at 535-36.
Plaintiff's loss of property claim in this action is based on an intentional, random act of a fellow inmate, and not some established state procedure or an act of a jail official. Thus, a predeprivation hearing under these circumstances would have been impractical because it would have been impossible for the jail officials to know beforehand of this particular theft.
Nevertheless, plaintiff had a postdeprivation remedy available to him in the form of an ordinary tort action. Milton v. Espey, 356 So.2d 1201 (Ala. 1978); Ala. Code § 6-5-262 (1993). In fact, Plaintiff did file an action in Mobile County district court. (Doc. 5, at 4). Plaintiff's claim was dismissed because Plaintiff failed to state a claim and failed to file a timely motion. However, in order to satisfy due process, the postdeprivation remedy does not have to guarantee a successful outcome.See Parratt, 451 U.S. at 543-44. Due process only requires that an adequate postdeprivation remedy be available when the deprivation of property occurs. Id. at 544. There is no allegation in the present action that this remedy is constitutionally inadequate. Because there was an adequate postdeprivation remedy available to Plaintiff when the deprivation occurred, Plaintiff's due process claim against Defendant Tillman is frivolous. See Steffen v. Housewright, 665 F.2d 245 (8th Cir. 1981) (affirming the dismissal of an inmate's complaint for items stolen or misplaced from the property room by officials even though superiors knew of a high volume of thefts because due process was afforded through an adequate postdeprivation remedy, collateral estoppel barred the re-litigation of the claim that had been litigated before the administrative agency, and supervisors cannot be held liable under the theory of respondeat superior for the actions of employees); see also Williams v. Callison, No. 93-3311, 1993 WL 525733 (10th Cir. Dec. 20, 1993) (unpublished) (holding that due process was not violated when an inmate went to pick up his property and found that some of his property was damaged or missing because an administrative procedure or a state court action was available to the inmate); Bostic v. Carlson, No. 91-16703, 1993 WL 210681 (9th Cir. June 15, 1993) (unpublished) (finding that due process was not violated when the inmate was unable to retrieve his reel-to-reel tape that was inventoried according to a policy that prohibits retention of a tape in an inmate's cell because the inmate had a postdeprivation remedy under the Federal Tort Claims Act); Craig v. Doe, No. 90-55155, 1990 WL 212679 (9th Cir. Dec. 21, 1990) (unpublished) (holding that an inmate's loss of property, which occurred when he was placed in administrative segregation and when officials failed to move him a cell away from an inmate who stole from him, was not a deprivation without due process because the state provided an adequate postdeprivation remedy).
Moreover, Plaintiff describes his claim against Defendant Tillman as being based on negligence. Even though the Court is not bound by Plaintiff's use of a legal conclusion, negligence, to describe the underlying actions, Plaintiff's allegations do support a conclusion that Defendant Tillman was negligent, at best. However, negligence is not recognized as a basis for recovery in a § 1983 action. Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986). Moreover, Plaintiff's lack of specificity precludes a conclusion other than negligence. Thus, Plaintiff's claim against Defendant Tillman is frivolous, and, therefore, is due to be dismissed on this alternate ground.
B. Defendant Gaston.
Plaintiff's allegations against Defendant Gaston are vague and conclusory. Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984) (vague and conclusory allegations are subject to dismissal). In fact, most of the allegations are legal conclusions with no facts to support them, e.g., due process and negligence. See Peterson v. Atlanta Housing Auth., 998 F.2d 904, 912 (11th Cir. 1993) ("Terms like 'due process' are inherently vague and such claims may rest on a virtually infinite number of factual scenarios"). Because there are no facts to support Plaintiff's conclusory statements, the Court does not know what Defendant Gaston allegedly did to violate Plaintiff's constitutional rights.
In a § 1983 action, a plaintiff must establish a causal connection between a defendant's actions, orders, policies, or breaches of statutory duty and a deprivation of the plaintiff's constitutional rights in order to state a claim upon which relief may be granted. See Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986); Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir.), cert. denied, 464 U.S. 932, 104 S.Ct 335, 78 L.Ed.2d 305 (1983). Due to the absence of supporting facts, Plaintiff has not established a causal connection between Defendant Gaston and the theft of Plaintiff's property. Accordingly, the undersigned finds that Plaintiff's claim against Defendant Gaston is frivolous. Kilgo v. Nicks, 983 F.2d 189, 194 (11th Cir. 1993) (affirmed the dismissal of the claims against the commissioner as frivolous because there were no allegations of participation or policy).
IV. Conclusion.
Based on the foregoing reasons, it is recommended that this action be dismissed without prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).