Opinion
Civil Action 00-0852-BH-S.
October 30, 2000
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison 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 for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that the claims against Officers Ziglar and Daniels be dismissed with prejudice as frivolous, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). This action will proceed as to Defendant Lt. Richard Hetrick.
I. Complaint (Doc. 1)
Plaintiff named as Defendants Lt. Richard Hetrick, Officer Ziglar, and Officer Daniels. Plaintiff claims that on August 29, 2000, Lt. Hetrick, the law library supervisor, fired Plaintiff from his law clerk job in the library based on false information and ordered Plaintiff to remove his property from the law library. Plaintiff alleges that when he collected his property and case files of other inmates whom he was assisting from the law library, Plaintiff told other inmates that he would file suit against Lt. Hetrick for placing false information in Plaintiffs file. Plaintiff maintains that on September 5, 2000, Lt. Hetrick "instituted a form of retaliation and harassment against Plaintiff for Plaintiff having stated to other inmates that Plaintiff was going to file a civil complaint against Lt. Hetrick for having fired Plaintiff from his job based upon false information." Plaintiff alleges that on September 5th, Lt. Hetrick ordered Plaintiff to segregation. Plaintiff claims that he was placed in segregation and that Officers Ziglar and Daniels searched Plaintiffs property and confiscated Plaintiffs legal papers and the papers of other inmates whom Plaintiff was helping. Plaintiff asserts that Officers Ziglar and Daniels would not give him a property sheet and told him that they were acting under the orders of Lt. Hetrick. Plaintiff claims that he asked Lt. Hetrick for his legal papers, but they have never been returned to him.
Plaintiff contends that on September 7, 2000, Lt. Hetrick continued the retaliation and harassment by issuing Plaintiff a disciplinary for stealing law library materials and encouraging other to do so and for stealing other inmates' legal materials. Plaintiff avers that on September 11, 2000, a disciplinary hearing was conducted by Officer Burnham, who is directly under Lt. Hetrick's supervision, and that at the hearing, Plaintiff asked Lt. Hetrick about other inmates' legal papers that Plaintiff had stolen and Lt. Hetrick stated that he did not say that Plaintiff stole any materials, but Plaintiff was in possession of them. Plaintiff contends that he presented several witnesses who said that he was not guilty of the charge and that no one was presented to say that Plaintiff had encouraged them. Plaintiff advises that he was found guilty and sentenced to 30 days in disciplinary segregation. For relief, Plaintiff requests $50,000 from each Defendant.
II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B)(i) .
Because Plaintiff is proceeding in forma pauperis, the Court has reviewed Plaintiffs 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, 325, 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 those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833.
The predecessor to this section was 28 U.S.C. § 1915(d).
III. Discussion.
A. Due Process Claim.
Plaintiff states that his claim against Defendants Ziglar and Daniels is for the confiscation of his legal papers (Doc. 1, at 6). In Hudson v. Palmer, 468 U.S. 517, 532-33, 104 S.Ct. 3194, 3203-04, 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 when a predeprivation hearing is impractical and there is available an adequate postdeprivation remedy at the time of the deprivation. The Hudson court reasoned that impracticality occurs when the loss of property occurs as a result of a "random, unauthorized act by a state employee," id. at 532, 104 S.Ct. at 3203 (quoting Paratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 1916, 68 L.Ed.2d 420 (1981), overruled on other grounds Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). as it is impossible for the State to know beforehand of the deprivation, negligent or intentional, and to provide a predeprivation hearing prior to the loss,id. at 533, 104 S.Ct. at 3203. Some postdeprivation remedies that have satisfied due process are administrative procedures, Parratt, 451 U.S. at 543-44, 101 S.Ct. at 1917, or ordinary tort litigation procedures,Hudson, 468 U.S. at 535-36, 104 S.Ct. at 3204.
A predeprivation hearing would have been impractical when Plaintiffs legal papers were taken, as this deprivation occurred not as a result of some established procedure. In Alabama, claims for property loss incurred at the hands of state agencies or their employees may be presented for compensation to the State Board of Adjustment pursuant to Ala. Code §§ 41-9-60, et seq. (1991 and Supp.), or the state employee may be personally liable to the inmate in an ordinary tort action, Milton v. Espey, 356 So.2d 1201 (Ala. 1978); Ala. Code § 6-5-262 (1993). Therefore, Plaintiff had available to him at the time of the deprivation a postdeprivation remedy that would have adequately compensated him for his loss.
It is not necessary that the postdeprivation remedy be available to Plaintiff at the present time to determine whether the deprivation was with or without due process. See Paratt, 451 U.S. at 543-44, 101 S.Ct. at 1917. It is only required that an adequate postdeprivation remedy be available to him when the deprivation occurred. Id. Because a postdeprivation remedy was available to Plaintiff at the time of his loss, the deprivation of Plaintiffs property does not violate due process. Accordingly, Plaintiffs due process claim is frivolous.
B. Access to Courts Claim.
Because Plaintiffs claim is based on the deprivation of legal papers, the Court will examine whether Plaintiff has stated a claim for denial of access to the courts. A violation of the right of access to the courts requires that a prisoner establish that he has been deprived of "meaningful access to the courts." Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 2180, 135 L.Ed.2d 606 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 823, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977)). To do so, a prisoner must establish that he has suffered an actual injury. Id. at 349-51, 116 S.Ct. at 2179-80. If a prisoner is unable to establish an actual injury, the prisoner lacks standing to bring a claim for the denial of access to the courts. Id. Moreover, a prisoner's claim in the underlying action must be demonstrated to be a non-frivolous claim and one that is related to the prisoner's direct appeal of his conviction, to his habeas petition, or to his civil rights action vindicating a basic constitutional right. Id. at 354, 116 S.Ct. at 2181-82. "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration."Id. at 355, 116 S.Ct. at 2182.
Plaintiffs allegations do not establish that he suffered a specific injury from the confiscation, much less an injury in an underlying action concerning a direct appeal of his conviction, a habeas petition, or a civil rights action concerning his conditions of confinement, and that the action was not frivolous. Accordingly, the undersigned finds that a claim for denial of access to the courts is frivolous.
IV. Conclusion.
Based upon the foregoing reasons, it is recommended that the claims against Officers Ziglar and Daniels be dismissed with prejudice as frivolous, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
The attached sheet contains important information regarding objections to the Report and Recommendation.