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, )

Finn v. McCarthy et al (INMATE 2)

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Case 1:06-cv-00806-MEF-DRB

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Filed 09/11/2006

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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).

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Case 1:06-cv-00806-MEF-DRB

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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

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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,

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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

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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

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