Shavers v. Toney

Filing 3

RECOMMENDED DISPOSITION recommending that 2 Plaintiff's Complaint be dismissed with prejudice, and that 1 his motion for leave to proceed in forma pauperis be denied as moot. In addition, the Court recommends that the dismissal count as a &q uot;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 2/13/2009. Signed by Magistrate Judge Beth Deere on 1/30/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION L O U I S G. SHAVERS, JR. A D C #110167 VS. C A S E NO.: 5:09CV00024 JLH/BD P L A IN T IF F

R I C K Y TONEY, Warden, R a n d a ll Williams Correctional Facility

DEFENDANT

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: T h e following Recommended Disposition has been sent to Chief United States D istric t Judge J. Leon Holmes. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a sis for the objection. If an objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the 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

II.

B a c k gro u d : P la in tif f , who is incarcerated at the Maximum Security Unit of the Arkansas

D e p a rtm e n t of Correction, filed a pro se Complaint (docket entry #2) under 42 U.S.C. § 1 9 8 3 , along with an Application for Leave to Proceed In Forma Pauperis (#1). For the f o llo w i n g reasons, the Court recommends that Plaintiff's Complaint (#2) be DISMISSED w ith prejudice, and that his Application for Leave to Proceed In Forma Pauperis (#1) be D E N IE D as moot. III. D is c u s s io n : P la in tif f is serving a sentence of life without parole as a result of his capital m u rd e r conviction in 1997. He alleges that he had $621.00 in his shoes when he was a rre ste d on June 4, 1995 or 1996. Plaintiff states that the Pine Bluff Police Department g a v e him a receipt for the money, but that the jail never returned the money to him. Plaintiff names Warden Ricky Toney as the only defendant in this matter. To 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 money, which is personal p r o p e r t y. 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,

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th e person does not have a Due Process § 1983 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. Even if Plaintiff had stated a claim for violation of his right to Due Process, his claim would be time barred. Plaintiff filed this action under 42 U.S.C. § 1983 on January 2 7 , 2009 (#2). A three-year statute of limitations applies to § 1983 actions filed in A rk a n s a s . Miller v. Norris, 247 F.3d 736, 739 (8th Cir.2001); Ketchum v. City of West M e m p h is , Ark., 974 F.2d 81, 82 (8th Cir. 1992). Plaintiff's allegation that money was c o n f is c a te d from him in 1995 or 1996 falls well outside the three-year limitations period. Furthermore, Plaintiff states that he has not previously filed an action related to the co n fisca tio n of money (#2, III.A.). Without the filing of a previous action, Plaintiff's c la im cannot be timely based on the Arkansas savings statute. ARK. CODE ANN. § 16-561 2 6 . Accordingly, pre-service dismissal under 28 U.S.C. § 1915A is appropriate. IV . C o n c lu s io n : T h e Court recommends that Plaintiff's Complaint (#2) be DISMISSED with p re ju d ic e , and that his motion for leave to proceed in forma pauperis (#1) be DENIED as m o o t. In addition, the Court recommends that the dismissal count as a "strike" for 3

p u rp o s e s of 28 U.S.C. § 1915(g), and that the District Court certify that an in forma p a u p e ris appeal taken from the order and judgment dismissing this action would be f riv o lo u s and not taken in good faith. D A T E D this 30th day of January, 2009. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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