Brown v. Stubenrauch et al

Filing 7

ORDER OF DISMISSAL, pltf's complaint is DISMISSED WITHOUT PREJUDICE for failing to state a claim upon which relief may be granted; dismissal constitutes a "STRIKE"; judgment will be entered accordingly. Signed by Chief Judge J. Leon Holmes on 4/6/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
DUSTIN NEAL BROWN,
ADC #105750

PLAINTIFF

v.

No. 4:12CV00106 JLH

MIKE BLAIN, Supervisor,
Pulaski County Sheriff’s Office, et al.

DEFENDANTS

ORDER OF DISMISSAL
I. Introduction
Plaintiff, Dustin Neal Brown, is a prisoner in the Delta Regional Unit of the Arkansas
Department of Correction. In this pro se § 1983 action, he alleges that Defendants violated his
constitutional rights before he was incarcerated. See docket entry #2. After screening Plaintiff’s
claims as required by 28 U.S.C. § 1915A, the Court concludes that the case must be dismissed,
without prejudice, for failing to state a claim upon which relief may be granted.1
II. Discussion
Plaintiff alleges that the Defendants, all of whom are law enforcement officers for Pulaski

1

The Prison Litigation Reform Act 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 a 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. § 1915A(b).
The Court is mindful that, when making this determination, the court must “accept as true
all factual allegations in the complaint, [while] giving no effect to conclusory allegations of law.”
Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007). Importantly, the complaint
must “assert facts that affirmatively and plausibly suggest,” “above the speculative level,” that the
plaintiff is entitled to relief and mere conclusions or a “formulaic recitation of the elements of a cause
of action will not do.” Stalley, 509 F.3d at 521; see also Bell Atl. Corp. v. Twombly, 127 S. Ct.
1955, 1965 (2007) (abrogating the “no set of facts” standard set forth in Conely v. Gibson, 355 U.S.
41, 45-46 (1957)). Nevertheless, in Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), the Supreme
Court emphasized that a pro se prisoner’s § 1983 complaint must be “liberally construed” and “held
to less stringent standards than formal pleadings drafted by lawyers.”

County or the State of Arkansas, violated his due process rights when they improperly conducted a
criminal investigation into the theft of his Jeep. See docket entry #2. As a result of their actions
during the investigation, Plaintiff contends his vehicle was returned to him in a damaged condition.
Id.
The United States Supreme Court has held that a prisoner cannot bring a § 1983 due process
claim for the intentional or negligent loss of or damage to his personal property, as long as the State
provides a post-deprivation remedy to address the property loss. See Hudson v. Palmer, 468 U.S.
517, 533-6 (1984); Parratt v. Taylor, 451 U.S. 527 (1981). In this case, Plaintiff has the adequate
post-deprivation remedies of filing: (1) a claim with the Arkansas Claims Commission, pursuant to
Ark. Code Ann. § 19-10-204; or (2) a conversion action against the Defendants in state court. Thus,
he has failed to state a viable § 1983 claim for relief.2 See McDowell v. Jones, 990 F.2d 433, 434 (8th
Cir. 1993) (dismissing a prisoner’s due process claim because he the state provided adequate post
deprivation remedies for obtaining compensation for the loss of his property); Jones v. Roy, Case No.
11-2517, 2011 WL 4716327 (8th Cir. Oct. 7, 2011) (unpublished opinion) (same); Bausley v. Dugan,
Case No. 04-2642, 2004 WL 2291373 (8th Cir. Oct. 13, 2004) (same).
III. Conclusion
IT IS THEREFORE ORDERED THAT:
1.

Pursuant to screening mandated by 28 U.S.C. § 1915A, this case is DISMISSED,

WITHOUT PREJUDICE, for failing to state a claim upon which relief may be granted.
2.

Dismissal constitutes a STRIKE, as defined by 28 U.S.C. § 1915(g).

2

Plaintiff knows the names of the four individuals who allegedly stole and damaged his Jeep.
See docket entry #2. Nothing in this Order of Dismissal prevents him from filing a conversion or
other tort action against each of those four individuals, in state court.
2

3.

The Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma

pauperis appeal from this Order of Dismissal and the accompanying Judgment would not be taken
in good faith.
Dated this 6th day of April, 2012.

UNITED STATES DISTRICT JUDGE

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