Opinion
CIV-23-172-J
05-26-2023
ROBERT JOE STRANGE, Plaintiff, v. STATE OF OKLAHOMA et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Plaintiff Robert Strange, appearing pro se brings this action under 42 U.S.C. § 1983. (ECF No. 1). United States District Judge Bernard M. Jones has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). A review of the complaint has been conducted pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). Based on that review, it is recommended that the Court DISMISS the Complaint in its entirety, without prejudice.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court likewise must review each case brought by a prisoner with respect to prison conditions and each case in which a plaintiff proceeds in forma pauperis. 42 U.S.C. § 1997e(c)(1); 28 U.S.C. § 1915(e)(2). The Court is required to dismiss the complaint or any portion of the complaint that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B); 42 U.S.C. § 1997e(c)(1).
II. STANDARD OF REVIEW
The Court must accept Mr. Strange's allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Since Mr. Strange is proceeding pro se, his Complaint must be construed liberally. See id. at 1218. The Court “review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (quotations and citation omitted). “Plausible” in this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct,” then the plaintiff has not “nudged (his) claims across the line from conceivable to plausible.” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008). Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of “judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
III. PLAINTIFF'S COMPLAINT
Mr. Strange alleges a violation of his constitutional rights based on the confiscation of his personal items by prison officials at the James Crabtree Correctional Center (JCCC). (ECF No. 1). As Defendants, Plaintiff names: (1) the State of Oklahoma; (2) the Director of the Oklahoma Department of Corrections (DOC); (3) Carrie Bridges, the Warden of JCCC; (4) Kay Garner, JCCC Correctional Officer; and (5) FNU Masquiler, Deputy Warden of JCCC. (ECF No. 1:1, 4, 6).
IV. DISMISSAL OF THE COMPLAINT
Mr. Strange alleges that on November 28, 2022, Sgt. Kay Garner “placed all [of Plaintiff's] purchased possessions into plastic bags and then placed [the bags] outside of housing unit 4-E in the rain.” (ECF No. 1:7). Plaintiff alleges that this action violated “[the] State and Federal constitution[s] because “Indians are hands off.” (ECF No. 1:2). Apparently, Mr. Strange believes that because he purchased the items from the commissary with money related to his membership in the Kiowa tribe, that the items were immune from being confiscated. Because Plaintiff does not cite a specific constitutional violation, the undersigned liberally construes the Complaint to allege violations of the Eighth and Fourteenth Amendments. See ECF No. 1:6, 7. The Court should dismiss the Complaint in its entirety for failure to state a claim.
A. The Eighth Amendment
Liberally construing the Complaint, it appears as though Plaintiff intended to assert an Eighth Amendment claim based on the deprivation of his property because it constituted cruel and unusual punishment. See ECF No. 1:7 (Plaintiff's allegations that he had “been abused by OK DOC and JCCC.").
The Eighth Amendment protects inmates from deprivation “of the minimal civilized measure of life's necessities” as measured under a contemporary standard of decency. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Food, clothing, shelter, medical care, and reasonable safety qualify as basic human needs. Helling v. McKinne,, 509 U.S. 25, 32 (1993). Deprivation of Plaintiff's personal items, however, does not rise to that standard. See Thomas v. N.M. Corr. Dep', 272 Fed.Appx. 727, 730 (10th Cir. 2008) (finding that inmate plaintiff's deprivation of personal property did not amount to cruel and unusual punishment); Hickey v. Oklahoma Cnty. Detention Center, No. CIV-20-1291-R, 2022 WL 1221645, at *3 (W.D. Okla. Feb. 23, 2022) (confiscation of Plaintiff's personal property did not violate the Eighth Amendment), adopted, Hickey v. Oklahoma Cnty. Detention Center, No. CIV-20-1291-R, 2022 WL 945319, at *3 (W.D. Okla. Mar. 29, 2022).
Mr. Strange does not allege that he is without any basic “life necessities.” Instead, his focus seems to be on the fact that prison officials allegedly confiscated personal items that he “bought with tribal monies,” which he alleges is prohibited by Article[s] 1-2 of the “Treaty of Medicine Lodge 1867.” (ECF Nos. 1:7; 1-1:9-15). Mr. Strange attaches the Treaty to the Complaint, but the undersigned sees nothing in Articles 1-2 that would support his claim. See ECF No. 1-1:9-15. Based on the foregoing, the Court should dismiss Plaintiff's Eighth Amendment claim. See Gillihan v. Shillinge, 872 F.2d 935, 941 (10th Cir. 1989) ("Plaintiff [ ] did not allege a deprivation of essential human needs. Rather, he alleged that he was deprived of 'what little luxury' he had. While such a deprivation may be 'restrictive and even harsh,' it did not amount to the infliction of cruel and unusual punishment.” (citation omitted)), overruled on other grounds by Clark v. Wilson, 625 F.3d 686, 691 (10th Cir. 2010).
Indeed, in a Request to Staff that Plaintiff attached to the Complaint, he stated that the confiscation did not involve his “state-issued” clothing. See ECF No. 1-1.
B. The Fourteenth Amendment
Construing Plaintiff's Complaint liberally, Mr. Strange has also asserted a Fourteenth Amendment Due Process claim based on the deprivation of property. See ECF No. 1:6 (Plaintiff's allegations that his personal property was confiscated “with no receipt given.”). The Court should dismiss this claim.
The Fourteenth Amendment guarantees due process “when a person is to be deprived of life, liberty, or property.” Templeman v. Gunte, 16 F.3d 367, 369 (10th Cir. 1994); see U.S. CONST. amend. XIV, § 1. (providing that "no State shall . . . deprive any person of life, liberty, or property, without due process of law.”). In the prison context, there are two types of property revocations that implicate due process principles. The first involves the adoption of "new polic[ies] that limit[ ] the amount of property prisoners c[an] keep in their cells.” Cosco v. Uphof, 195 F.3d 1221, 1222 (10th Cir. 1999). "[A] prison regulation governing what prisoners may possess in their cells will create a protected . . . property interest only if the deprivation . . . impos[es] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Robinson v. Do, 761 Fed. App'x 855, 857 (10th Cir. 2019) (citing Cosc, 195 F.3d at 1222). Policies limiting the retention of hobby materials, electronic tablets, television, radio, entertainment systems, and snacks do not impose an atypical and significant hardship on inmates. See Griffin v. Hickenloope, 549 Fed.Appx. 823, 826 (10th Cir. 2013); Robinson, 761 Fed. App'x at 857; Cosc, 195 F.3d at 1222.
The second type of property revocation involves the "unauthorized intentional deprivation of property” by a prison official. Hudson v. Palme, 468 U.S. 517, 533 (1984).
This occurs where prison officials revoke property “in violation of, rather than according to, established procedure[s].” Johnson v. White, 723 Fed.Appx. 587, 593 (10th Cir. 2018). Such revocation is only actionable where no “meaningful postdeprivation remedy for the loss is available.” Hudson, 468 U.S. at 533. Said differently, "[e]ven if the seizure of a prisoner's property is improper,” it "does not give rise to a . . . due process claim if adequate state post-deprivation remedies are available.” Bridgeforth v. Ramsey, 1999 WL 992978, *1 (10th Cir. Nov. 2, 1999). See also Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989) (same). The plaintiff "must plead facts showing that his state [post-deprivation] remedy was inadequate.” Johnson v. Whitney, 723 Fed.Appx. 587, 593 (10th Cir. 2018); see also Freeman v. Department of Correction., 949 F.2d 360, 362 (10th Cir. 1991) (addressing the adequacy of remedies in connection with a prisoner's confiscated stereo).
Here, the Complaint appears to allege the confiscation was unauthorized. In the Complaint, Plaintiff states only: "Sgt. Kay Garner placed all my purchased possessions into plastic bags and then placed outside of the housing unit 4-E in the rain.” (ECF No. 1:7). In various attachments to the Complaint, Plaintiff contends that the Deputy Warden ordered the confiscation and subsequent disposal of Plaintiff's items in the trash. See ECF No. 1-1:4,6. Taken together, the allegations suggest that Plaintiff is alleging that the Deputy Warden ordered Defendant Garner to place the items outside of Plaintiff's cell, with a subsequent order by the Deputy Warden for the items to be thrown in the trash. In a "Disposition” to a Request to Staff regarding this issue, however, a staff member stated:
Due to hygiene issues, your clothing was bagged up and taken outside. You were instructed to pick them up Saturday and wash them. You were
instructed by multiple staff to get your clothing and you refused to get them. The D[eputy] W[arden] did not order their disposal.(ECF No. 1-1:4). Based on the forgoing, it is unclear what ultimately happened to Plaintiff's items. He alleges only that they were taken from him and intentionally disposed of. But the allegations in the Complaint and the evidence submitted by Mr. Strange himself dispels any notion that either Ms. Garner or the Deputy Warden ordered Plaintiff's property to be thrown in the trash. In any event, Plaintiff does not suggest that the items were destroyed pursuant to any particular policy of JCCC, which would indicate that the disposal was random or unauthorized.
As a result, the Due Process claim fails because Plaintiff does not allege the absence of an adequate state remedy. “[N]either negligent nor intentional deprivations of property under color of state law that are random and unauthorized give rise to a § 1983 claim where the plaintiff has an adequate state remedy . . . .” Gilihan v, Shilinger, 872 F.2d at 939; see Hudson v, Palme, 468 U.S. 517, 533 (1983) (holding the “unauthorized intentional deprivation of property” by a state employee “does not 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”). The State of Oklahoma provides post-deprivation remedies for illegal loss of property through the state court system as well as the prison administrative grievance process. For example, Oklahoma's replevin statute provides a post-deprivation judicial remedy for the recovery of possession of property or the value of the property. See Okla. Stat. tit. 12, §§ 1571-71.1, 1580. Plaintiff also has a post-deprivation remedy in the form of actions for conversion or fraud. See id. tit. 23, §§ 3, 4; id. tit. 76, § 1.
As noted, Mr. Strange utilized the prison grievance procedure in an effort to resolve his claim. See supra; see ECF No. 1-1:2-8.
In sum, the Court should conclude that because Mr. Strange had an adequate post-deprivation remedy available to him for the unauthorized taking of his items, he has failed to state a claim for a violation of Due Process.
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should dismiss the Complaint, without prejudice, for failure to state a claim upon which relief may be granted.
Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by June 12, 2023. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral to the undersigned magistrate judge in the captioned matter.