Nichols v. Sweet et al

Filing 5

DOCUMENT FILED IN ERROR - DISREGARD. (kpr) (Docket text modified on 6/20/2011, pursuant to instructions from Chambers.) (thd)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION RICHARD SHANE NICHOLS, ADC #112196 V. PLAINTIFF 4:11-cv-00452-SWW-JTK ROWDY SWEET, et al. DEFENDANTS ORDER I. Introduction Plaintiff Richard Nichols, a state inmate proceeding pro se, has been granted leave to proceed in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff alleges Defendants are responsible for the loss of his property following his arrest on October 12, 2010, and asks for return of the property or $2,000 in damages. II. Screening The Prison Litigation Reform Act (PLRA) requires federal courts to screen prisoner complaints seeking relief against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(A)(b). An action is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). 1 In reviewing a pro se complaint under § 1915(e)(2)(B), the court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). But regardless whether a plaintiff is represented or appearing pro se, the complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). III. Facts and Analysis Plaintiff states Defendants arrested him on October 12, 2010 during a traffic stop, and permitted a passenger in his car to leave the scene in Plaintiff’s vehicle, without his permission. Plaintiff complains that he has not been able to recover numerous items of his personal property which were in the car, and holds Defendants responsible for his losses. In order to support a claim for relief against Defendants pursuant to 42 U.S.C. § 1983, Plaintiff must allege that a person acting under the color of state law deprived the Plaintiff of some Constitutional right. Griffin-El v. MCI Telecommunications Corp., et al., 835 F.Supp. 1114, 1118 (E.D.MO 1993). However, Plaintiff’s allegations concerning the loss of his personal property do not state an actionable constitutional claim. When a state actor deprives an individual of personal property, the individual does not have a § 1983 claim if state law provides an adequate postdeprivation remedy. Hudson v. Palmer, 468 U.S. 517, 530-537 (1984). In Arkansas, the action of conversion is a common law tort action for the wrongful possession or disposition of someone’s property. McQuillian v. Mercedes-Benz Credit Corp., 331 Ark. 242, 247 (Ark. 1998). See also Scott v. Boyd, No. 3:08cv00136WRW, 2008 WL 4874058 (E.D.Ark. 2008), where the plaintiff inmate sued defendants for damages in a § 1983 action, for property that was lost or stolen while he 2 was incarcerated at the Crittenden County Jail. In this case, Plaintiff does not allege in his Complaint that he has utilized the post-deprivation remedy and therefore, the Court finds his claim should be dismissed. IV. Conclusion IT IS, THEREFORE, RECOMMENDED that: 1. Plaintiff’s Complaint against Defendants be DISMISSED for failure to state a claim. 2. Dismissal of this action constitute a “strike” within the meaning of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g). 3. The Court certify that an in forma pauperis appeal from an Order and Judgment dismissing this action would not be taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3). IT IS SO ORDERED this 20th day of June, 2011. ___________________________________ JEROME T. KEARNEY UNITED STATES MAGISTRATE JUDGE 3

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