Denham v. Stinson

Filing 5

REPORT AND RECOMMENDATIONS recommending that 3 MOTION for Leave to Proceed in forma pauperis filed by Billy Joe Denham, Jr. be denied and that 1 Complaint Referred (42:1983) filed by Billy Joe Denham, Jr. be dismissed with prejudice. Objections to R&R due by 11/5/2009. Signed by Honorable Barry A. Bryant on October 19, 2009. (cap)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS T E X A R K A N A DIVISION

B ILLY JOE DENHAM, JR. v. DAVID STINSON, Narcotics In v e s tiga to r, Howard County, A rk an s a s C iv il No. 4:09-cv-04094

PLAINTIFF

DEFENDANT

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE T h is is a civil rights action filed by the Plaintiff, Billy Joe Denham, Jr., pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2005), the Honorable Harry F. B a rn e s , United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation. Before the Court is Plaintiff's motion for leave to proceed in forma pauperis. For the reasons s ta te d below, it is the recommendation of the undersigned that Plaintiff's in forma pauperis a p p lic a tio n be denied and his Complaint be dismissed. Background A c c o rd in g to the allegations of the complaint, on October 31, 2008, Plaintiff was pulled over b y David Stinson (hereinafter Stinson), a narcotics investigator, in Howard County, Arkansas. Stinson "took" Plaintiff's cell phone. Plaintiff was then incarcerated in the Nashville, Arkansas, at th e Howard County Jail. When Plaintiff was transferred to the Hempstead County Detention Facility, h e states his cell phone was not transferred with him. Plaintiff attached to the complaint a grievance dated July 11, 2009, in which he states he was tra n s fe rre d to Hope without his cell phone. In response, Lt. Godbolt contacted Howard County. Lt.

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Godbolt informed Plaintiff: "the jail stated that you had call before & after 30 days your property h a s been destroyed." On July 12th, Plaintiff submitted another grievance stating he had been incarcerated since he h a d been arrested by Stinson. In Plaintiff's opinion the jail was responsible for his property and the th irty day rule didn't apply. In response, Lt. Godbolt stated that he had called Nashville and was told P la in tiff's property had been taken for evidence. D is c u s s io n T h e Plaintiff is an inmate of the Hempstead County Detention Facility in Hope, Arkansas. P u rs u a n t to 28 U.S.C. § 1915A the court has the obligation to screen any complaint in which a p ris o n e r seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In reviewing an in forma pauperis application, there is a two step process followed by the C o u rt. First, a determination of whether the Plaintiff qualifies by economic status under § 1915(a) a n d , if so, to permit the complaint to be filed. Second, a determination of whether the cause of action s ta te d in the complaint is frivolous, malicious or fails to state a claim upon which relief may be gra n te d , if so, to dismiss the complaint. Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir. 1 9 8 2 ). 28 U.S.C. § 1915A(b)(On review, the court is to dismiss the complaint, or any portion of the c o m p la in t, that is frivolous, malicious, or fails to state a claim upon which relief may be granted, or s e e k s monetary relief from a Defendant who is immune from such relief.). See also 28 U.S.C. § 1 9 1 5 (e )(2 )(B )(i-iii). In his affidavit, Plaintiff indicates he has no source of income and no assets. The records fro m the detention facility show his monthly balance averaged less than six dollars. The information

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supplied by Plaintiff appears to be sufficient to determine that Plaintiff would qualify by economic s ta tu s for in forma pauperis status. I turn to an examination of the claim asserted by Plaintiff. Here, Plaintiff contends Stinson u n la w fu lly deprived him of his personal property, the cell phone. The Supreme Court has held that n e glige n t conduct is insufficient to state a cause of action under 42 U.S.C. § 1983. See Daniels v. W illia m s , 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 1 0 6 S. Ct. 668, 88 L. Ed. 2d 677 (1986). See also Sellers by and through Sellers v. Baer, 28 F.3d 8 9 5 , 902-03 (8th Cir.1994)(Inadvertence, negligence, or even gross negligence is insufficient to state a claim under § 1983). Thus, when personal property is lost through negligent conduct, no cause o f action exists under § 1983. To the extent the complaint can be read to allege Plaintiff was deprived o f his property through Stinson's negligent conduct, Plaintiff's claim lacks any arguable basis in law a n d is subject to dismissal. W h e n an individual is intentionally deprived of his personal property, the Supreme Court has h e ld that Due Process is satisfied if the individual has adequate state post-deprivation remedies. See H u d s o n v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984)(intentional d e p riv a tio n of property does not violate Due Process when meaningful post-deprivation remedy is a v a i l a b le ); Barnett v. Centoni, 31 F.3d 813 (9th Cir. 1994)(intentional deprivation of prisoner's p ro p e rty fails to state claim under § 1983 if state has adequate post-deprivation remedy). Arkansas re c o gn iz e s a cause of action for conversion, Elliot v. Hurst, 307 Ark. 134, 817 S.W.2d 877, 880 (1 9 9 1 )(c a u s e of action for conversion lies where distinct act of dominion is exerted over property in denial of owner's right). As conversion is an intentional tort, Ford Motor Credit Co. v. Herring, 2 6 7 Ark. 201, 589 S.W.2d 584 (1979), the statutory immunity granted to local governments and e x te n d e d to their employees does not apply. See Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431

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(1989). Plaintiff therefore has an adequate post-deprivation remedy that satisfies Due Process. This c la im fails. M o re o v e r, the Arkansas Rules of Criminal Procedure provide a method for filing a motion fo r return of seized property. Ark. R. Crim. P. 15.2. If the cell phone was used as evidence in a c rim in a l prosecution, Plaintiff would need to challenge the use in the appropriate state court. See H e c k v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994)(a claim for d a m a g e s for "allegedly unconstitutional conviction or imprisonment, or for other harm caused by a c tio n s whose unlawfulness would render a conviction or sentence invalid" is not cognizable until "th e conviction or sentence has been reversed on direct appeal, expunged by executive order, d e c la re d invalid by a state tribunal authorized to make such a determination, or called into question b y a federal court's issuance of a writ of habeas corpus."). Conclusion A c c o rd in gly, it is the recommendation of the undersigned that Plaintiff's request to proceed in forma pauperis (Doc. 3) be denied and Plaintiffs' Complaint be dismissed with prejudice. The c la im s asserted are frivolous and fail to state claims upon which relief may be granted. 28 U.S.C. § 1915A(b)(1). Plaintiff has ten (10) days from receipt of this report and recommendation in which to f ile written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections m a y result in waiver of the right to appeal questions of fact. Plaintiff is reminded that o b je c tio n s must be both timely and specific to trigger de novo review by the district court. D A T E D this 19th day of October 2009. /s / Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

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