Redus v. Harmon et al
RECOMMENDED DISPOSITION recommending that Plaintiff's claims be dismissed with prejudice. In addition, the Court recommends that the dismissal count as a strike for purposes of 28 U.S.C. § 1915(g), and that the District Court certify that an in forma pauperis appeal taken from the order and judgment dismissing this action would be frivolous and not taken in good faith. Objections to R&R due by 5/5/2009. Signed by Magistrate Judge Beth Deere on 4/21/09. (hph)
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION
X A V I E R REDUS A D C # 108610 V. G R E G HARMON, et al. R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: NO. 2:09CV00033-JMM/BD
P L A IN T IF F
T h e following Recommended Disposition has been sent to United States District J u d g e James M. Moody. Any party may file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the o b je c tio n . If an objection is to a factual finding, specifically identify that finding and the e v i d e n c e that supports your objection. An original and one copy of your objections must b e received in the office of the United States District Court Clerk no later than eleven (1 1 ) days from the date you receive the Recommended Disposition. A copy will be f u rn is h e d to the opposing party. Failure to file timely objections may result in waiver of th e right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C lerk , United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A-149 L ittle Rock, AR 72201-3325
B a c k gro u n d : P la in tif f , who is incarcerated at the East Arkansas Regional Unit ("EARU") of the
A rk a n sa s Department of Correction ("ADC"), filed a pro se Complaint (docket entry #2) u n d e r 42 U.S.C. §1983, along with an Application for Leave to Proceed In Forma P a u p e r is (#1). The Court previously allowed Plaintiff to proceed in forma pauperis, but o rd e re d Plaintiff to file an Amended Complaint in this matter specifically explaining his c o n stitu tio n a l claims (#3). Plaintiff now has filed an Amended Complaint (#5). For the f o llo w in g reasons, the Court recommends that Plaintiff's claims be DISMISSED with p r e ju d ic e . III. D is c u s s io n : P lain tiff alleges that on June 30, 2008, Officer Mayers, not a party Defendant in th is lawsuit, conducted a shake down of his unit. During that shake down, Officer M a ye rs allegedly confiscated thirty-four of Plaintiff's family photographs. Plaintiff c laim s that Officer Mayers gave these photographs to Officer Westbrook, the property ro o m supervisor, so that the photographs could be mailed to his family members. Plaintiff claims that these photographs were never returned and were never received by h is family members. Plaintiff names Warden Harmon, Officer Westbrook, Officer
W a lto n , Officer Dover, Officer Wilson, Larry Norris, Ray Hobbs, as well as the EARU a n d the ADC as Defendants.1 T o state a cognizable claim under 42 U.S.C. § 1983, a plaintiff must allege that the c o n d u c t of a defendant acting under color of state law deprived him of a right, privilege, o r immunity secured by the federal Constitution or laws of the United States. 42 U.S.C. § 1983. In this case, Plaintiff alleges that he was deprived of family photographs, which a re considered personal property. In Hudson v. Palmer, 468 U.S. 517, 529-30, 104 S.Ct. 3194 (1984), the United S ta te s Supreme Court held that when a state actor deprives a person of personal property, th e person does not have a due process claim if state law provides an adequate p o s t-d e p riv a tio n remedy. The State of Arkansas provides such a remedy through the A rk a n sa s Claims Commission. See ARK. CODE ANN. § 19-10-204(a) (vesting the A r k a n s a s State Claims Commission with "exclusive jurisdiction over all claims against th e State of Arkansas and its several agencies, departments and institutions"). Accordingly, Plaintiff has not presented a cognizable due process claim.2
The Court recognizes that the EARU and the ADC are not persons that may be s u e d under § 1983. Brown v. Missouri Dep't of Corr., 353 F.3d 1038, 1041 (8th Cir. 2 0 0 4 ) (per curiam). However, because the Court finds that Plaintiff has failed to state a c o lo ra b le § 1983 claim, a further discussion of this issue is not included in this R e c o m m e n d e d Disposition. In Plaintiff's original Complaint, he explains that he filed a case before the State C la im s Commission and that the case was dismissed. Accordingly, Plaintiff's claims also may be barred by res judicata. The Eighth Circuit has held that when an administrative a g e n c y acts in a judicial capacity to resolve disputed issues of fact properly before it, 3
F u r th e r, Plaintiff seems to claim that his First Amendment rights have been v io la te d based upon his freedom to access the mail. Inmates have a First Amendment rig h t of free speech to send and receive mail. See Hudson v. Palmer, 468 U.S. 517, 547, 1 0 4 S.Ct. 3194 (1984). "The fact of confinement and the needs of the penal institution im p o s e limitations on constitutional rights, including those derived from the First A m e n d m e n t." Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 125, 97 S.Ct. 2 5 3 2 (1977). However, "[t]he First Amendment does not compel prison officials to p ro v id e indigent prisoners with unlimited free postage and materials for non-legal mail." V a n Poyck v. Singletary, 106 F.3d 1558, 1159-1560 (11th Cir. 1997). Here, Plaintiff does not allege that Defendants denied him paper, writing in s tru m e n ts , or postage. Further, he does not appear to challenge any ADC restriction on w h a t type of mail he could send or receive. At most, Plaintiff seems to allege that D e f en d a n t Westbrook, as property room supervisor, acted negligently in the handling of P la in tif f 's photographs. "Mere negligence [is] insufficient to rise to a constitutional v io la tio n ." Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.1997).
which the parties have had an opportunity to litigate, the principles of res judicata apply to bar further claims by the parties or their privies based on the same cause of action. Price v. Harris, 722 F.2d 427, 428 (8th Cir. 1983); Steffen v. Housewright, 665 F.2d 245, 2 4 7 (8th Cir. 1981). Because Plaintiff did not include any description of the resolution of h is case before the State Claims Commission in his Amended Complaint, the Court c a n n o t say for certain that Plaintiff's claims are barred by res judicata. 4
C o n c lu s io n : T h e Court recommends that Plaintiff's claims be DISMISSED with prejudice. In
a d d itio n , the Court recommends that the dismissal count as a "strike" for purposes of 28 U .S .C . § 1915(g), and that the District Court certify that an in forma pauperis appeal ta k e n from the order and judgment dismissing this action would be frivolous and not ta k e n in good faith. D A T E D this 21st day of April, 2009.
___________________________________ U N IT E D STATES MAGISTRATE JUDGE
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