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)

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).

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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
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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

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