Finn v. McCarthy et al (INMATE 2)

Filing 4

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint be dismissed with prejudice prior to service of process pursuant to the provisions of 28 USC 1915 (e)(2)(B)(i). Objections to R&R due by 9/25/2006. Signed by Judge Delores R. Boyd on 9/11/2006. (cb, )

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Finn v. McCarthy et al (INMATE 2) Doc. 4 Case 1:06-cv-00806-MEF-DRB Document 4 Filed 09/11/2006 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA SO U T H E R N DIVISION _________________________________ J O H N N Y FINN P l a i n t if f , v. W IL L IAM MCCARTHY, et al., * * * * 1:06-CV-806-MEF (WO) D e f e n d a n ts . * _________________________________ R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P lain tiff, Johnny Finn ["Finn"], an inmate incarcerated at the Houston County Jail, fi l e d this 42 U.S.C. 1983 on September 7, 2006. He complains that Defendants, Jail A d m in is tra to r William McCarthy and Sergeant Bonnin, improperly confiscated his personal p ro p e rty on August 18, 2006. Finn requests that the personal items taken be returned to h i m . Upon review of the complaint, the undersigned concludes that dismissal of this case p rio r to service of process is proper under 28 U.S.C. 1915(e)(2)(B)(ii). 1 See Neitzke v. W illia m s, 490 U.S. 319 (1989); see also Denton v. Hernandez, 504 U.S. 25 (1992). A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in accordance with the provisions of 28 U.S.C. 1915(e)(2)(B). This screening procedure requires the court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. 1915(e)(2)(B)(i)-(iii). 1 Case 1:06-cv-00806-MEF-DRB Document 4 Filed 09/11/2006 Page 2 of 5 I . FACTS F in n complains that Defendants improperly confiscated property from his cell during th e early morning hours of August 16, 2006. As justification for removing the property, D e fe n d a n ts informed Finn that he could not "run a store" from his cell. Finn contends that th e re is no rule or regulation in the Inmate Handbook prohibiting inmates from running a s to re out of their cell or forbidding inmates from leaving their personal property with other in m a te s upon their departure from the Houston County Jail. According to Finn, the latter s c e n ario accounted for his abundance of personal property. Defendants neither sanctioned n o r disciplined Finn for the conduct about which he complains. Finn further states that D efe n d an ts gave him back $25.00. (Doc. No. 1.) II. DISCUSSION T h e court understands Finn to complain that Defendants' allegedly improper c o n fis c a tio n of his property violated his right to due process. Insofar as Finn's complaint a b o u t the allegedly improper confiscation of his property is concerned, the court finds that u n d er no set of facts is he entitled to relief. "If the [property from Plaintiff's cell] was not returned because o f [Defendants'] negligence, there has been no unconstitutional d ep rivatio n of property. See Daniels v. Williams, 474 U.S. 327, 1 0 6 S.Ct. 662, 88 L.Ed.2d 662 (negligent loss of property does n o t rise to the level of a constitutional violation.) If [D efe n d an t s ] intentionally refused to return the [property], p la in tiff has not alleged a constitutional violation. In Hudson v. Pa lm e r the Court ruled that an 'unauthorized intentional d e p rivatio n of property by a state employee does not constitute 2 Case 1:06-cv-00806-MEF-DRB Document 4 Filed 09/11/2006 Page 3 of 5 a violation of the Due Process Clause . . . if a meaningful postd e p riva tio n remedy for the loss is available.' 104 S.Ct. at 3202, 8 2 L.Ed.2d at 407. It is essential to [the instant] complaint that it allege that [Defendants] acted without authorization. If [D efe n d an ts] w[ere] acting pursuant to authorization, [their] a c tio n s would be within the outer perimeter of [their] duties and w o u ld not have violated any clearly established constitutional r i g h t and therefore [they] would be immune from suit. See S c h e u e r v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 16919 2 , 40 L.Ed.2d 90 (1974); Flinn v. Gordon, 775 F.2d 1551, 1 5 5 3 (11 th Cir.1985). Only if the complaint is construed as a lle gin g that [Defendants] w[ere] acting in bad faith outside the s c o p e of [their] duties can it evade the doctrine of official i m m u n i ty . Rodriguez-Mora v. Baker, 792 F.2d 1524, 1527 (11 th Cir. 1986). See also Holloway v. W a lk e r, 790 F.2d 1170, 1173-74 (5 th Cir. 1986) (finding no breach of federally guaranteed c o n stitu tio n a l rights, even where a high level state employee intentionally engages in tortuous c o n d u c t, as long as the state system as a whole provides due process of law); Myers v. K le v en h a g e n , 97 F.3d 91, 94-95 (5 th Cir. 1996) ("the Parratt [v. Taylor, 451 U.S. 527 (19 8 1 )]/H u d s o n [v. Palmer, 468 U.S. 517 (1984)] doctrine protects the state from liability fo r failing to provide a pre-deprivation process in situations where it cannot anticipate the ra n d o m and unauthorized actions of its officers." The complainant bears the burden of estab lish ing that the state's post-deprivation remedy is inadequate). The State of Alabama, through its Board of Adjustment, provides a meaningful postd ep rivatio n remedy for Plaintiff to seek redress for the loss of his property. Ala. Code 419 -6 0 et seq. (1982). In light of this adequate state remedy, Plaintiff's allegation that D e fe n d a n ts violated his due process rights by improperly confiscating his personal property, 3 Case 1:06-cv-00806-MEF-DRB Document 4 Filed 09/11/2006 Page 4 of 5 w h e th e r such was the result of negligence or an intentional act, lacks an arguable basis in the law and is, therefore, subject to dismissal under the provisions of 28 U.S.C. 1 9 1 5 ( e ) ( 2 ) ( B ) ( i) . III. CONCLUSION A c c o rd in gly , it is the RECOMMENDATION of the Magistrate Judge that Plaintiff's c o m p la in t be DISMISSED with prejudice prior to service of process pursuant to the p rovision s of 28 U.S.C. 1915(e)(2)(B)(i). It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before September 25, 2006. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r ivo lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a gis tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual fin d in gs in the report accepted or adopted by the District Court except upon grounds of plain erro r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P ric h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc), adopting as binding precedent all of the 4 Case 1:06-cv-00806-MEF-DRB Document 4 Filed 09/11/2006 Page 5 of 5 d e c is io n s of the former Fifth Circuit handed down prior to the close of business on Se p te m b e r 30, 1981. D o n e , this 11 th day of September 2006. /s / Delores R. Boyd D E LO R E S R. BOYD U N IT E D STATES MAGISTRATE JUDGE 5

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