Opinion
Civil Action No. 3:01cv218BN
May 11, 2001
OPINION AND ORDER
This cause is before the court, sua sponte, for consideration of dismissal. Plaintiff Michael Clayton Ross is an inmate incarcerated in the Mississippi State Penitentiary, Parchman, Mississippi, who has filed this complaint pursuant to 42 U.S.C. § 1983. Robert Johnson, Commissioner; Fred Childs, Superintendent of Central Mississippi Correctional Facility; Alvin Randall, Shift Supervisor at Central Mississippi Correctional Facility; and Aaron Handy, Inventory Officer at Central Mississippi Correctional Facility are named as defendants in this action. The plaintiff seeks monetary damages as relief.
Background
When the plaintiff arrived at the Central Mississippi Correctional Facility in June 1999, he began the orientation process and his property was confiscated by defendant Handy to be placed in storage until the plaintiff was transferred to another facility. He was given a property slip. All of his property, except his color television, was listed on the property slip. On July 18, 1999, the plaintiff was preparing to be transferred and according to his complaint his "property was no where to be found." He was told that his property would be sent to Parchman at a later date. Apparently, these items were never sent to the plaintiff at Parchman. As a result, he has filed this civil action against the named defendants.
Analysis
The Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2) (as amended), applies to prisoner proceedings in forma pauperis and provides that "the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." Since the plaintiff was granted in forma pauperis status Section 1915(e)(2) applies to the instant case. As discussed below, the plaintiffs § 1983 action fails to state a claim on which relief may be granted, at this time.
It is clear that a complaint filed pursuant to 42 U.S.C. § 1983 is not cognizable absent the defendant depriving the plaintiff of some right secured to the plaintiff by the Constitution or the laws of the United States. See Baker v. McCollan, 443 U.S. 137, 140 (1979) (first inquiry in any section 1983 suit is whether the defendant has deprived the plaintiff of a right secured by the Constitution).
It is well settled that intentional deprivations of property by state officials do not violate the due process clause of the Fourteenth Amendment if adequate post deprivation remedies exist. Hudson v. Palmer, 468 U.S. 517 (1984). This holds equally true for claims of negligent deprivation. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon 474 U.S. 344 (1986). State law may provide an adequate post deprivation remedy., Hudson v. Palmer, 468 U.S. 517 (1984); Marshall v. Norwood, 741 F.2d 761, 763 (5th Cir. 1984).
The state of Mississippi provides at least three post-seizure remedies, including actions for conversion, claim and delivery, and replevin, any of which plaintiff can use to recover the property he insists was wrongfully taken from him. It has been held that "Mississippi' s post-deprivation remedies for civil WP litigants satisfy due process." Nickens v. Melton, 38 F.3d 183. 185 (5th Cir. 1994). Since the state of Mississippi affords plaintiff an adequate post deprivation remedy for the alleged deprivation of his property, no due process violation exists and the plaintiffs assertion that the defendants have violated his constitutional rights is found to be without merit.
Conclusion
As discussed above, the plaintiff has failed to present an arguable constitutional claim against these defendants. Therefore, this case will be dismissed for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(ii), with prejudice.
Three-strikes provision
Since this case is dismissed pursuant to the above mentioned provision of the Prison Litigation Reform Act, it will be counted as a "strike". if the plaintiff receives "three strikes" he will be denied in forma pauperis status and required to pay the fill filing fee to file a civil action or appeal.
28 U.S.C. § 1915(g) states:
"In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury."