Rocket v. Warden et al
ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/12/14. 9 Motion for Release is denied as moot. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01693-BNB
WARDEN CHARLES DANIELS,
UNKNOWN OFFICER #1 (Mr. Vigil),
UNKNOWN OFFICER #2,
UNKNOWN OFFICER #3, and
DIRECTOR OF FEDERAL BUREAU OF PRISONS,
ORDER OF DISMISSAL
Plaintiff, James Rockett, is a federal prisoner at the Federal Correctional
Institution in Bennettsville, South Carolina. Plaintiff initiated this action by filing pro se a
Complaint pursuant to 42 U.S.C. § 1983. On June 18, 2014, Magistrate Judge Boland
reviewed the Complaint and determined that it was deficient because Plaintiff failed to
use a proper Court-approved form to present his claims and to request leave to proceed
pursuant to 28 U.S.C. § 1915. Magistrate Judge Boland directed Plaintiff to cure the
deficiencies, which Plaintiff has done. Magistrate Judge Boland also granted Plaintiff
leave to proceed pursuant to 28 U.S.C. § 1915.
The Court must construe the Complaint liberally because Plaintiff is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Under 28 U.S.C.
§ 1915A, the Court is required to review the Complaint because Plaintiff is a prisoner
and Defendants are officers or employees of a governmental entity. Pursuant to
§ 1915A(b)(1), the Court is required to dismiss the Complaint, or any portion of the
Complaint, that is frivolous. A legally frivolous claim is one in which a plaintiff asserts
the violation of a legal interest that clearly does not exist or asserts facts that do not
support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 324 (1989). For the
reasons stated below, the Court will dismiss the Complaint as legally frivolous.
In the Complaint filed on July 31, 2014, Plaintiff asserts jurisdiction pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), rather than 42 U.S.C. § 1983. He claims that on June 9, 2012, when he was
transferred to a different prison facility, federal officers failed to properly inventory his
personal property and to provide to him a personal property record. Plaintiff further
asserts that when he arrived at the new prison facility, and received his property, certain
items were missing and that as of the filing of this action, he has not been able to
recover the missing items. Plaintiff seeks money damages.
Plaintiff generally is claiming his Fifth Amendment rights were violated. (Plaintiff
identifies the Fifteenth Amendment as the basis for his claim, but his description of the
Fifteenth Amendment indicates he is relying on the Fifth Amendment.) The Fifth
Amendment provides that “[n]o person shall be . . . deprived of life, liberty, or property,
without due process of law . . . .” U.S. CONST. Amend V. Plaintiff does not have a
constitutionally-protected interest in a prison official’s negligent or intentional and
deprivations of his property if he has an available adequate post-deprivation remedy.
See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (explaining a deprivation of property
involving a state employee does not constitute a violation of the Due Process Clause “if
a meaningful postdeprivation remedy for the loss is available”). The same due process
principles under the Fourteenth Amendment apply to the federal government through
the Fifth Amendment, Raditch v. United States, 929 F.2d 478, 481 (9th Cir. 1991), and
postdeprivation tort remedies are all the process that is due, Parratt v. Taylor, 451 U.S.
527, 541 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327
Plaintiff submitted an administrative remedy to challenge the loss of his property
and appealed the request for administrative remedies to the Bureau of Prisons Central
Office. See ECF No. 10-11 and 17. Plaintiff also provides documentation that prison
staff directed him to file a request for damages on a tort claim form regarding the lost
property. Id. at 10. He, therefore, is not able to maintain a Fifth Amendment due
process claim. See Williams v. Mestas, 355 F. App’x 222, 224 (10th Cir. 2009)
(prisoner’s due process rights were not violated where prisoner was provided an
administrative remedy to challenge the destruction of his property); Muhammad v.
Finley, et al., 74 F. App’x 847, 849 (10th Cir. 2003) (negligent or intentional deprivations
of property do not violate the Due Process Clause); Wilson v. United States, 29 F.
App’x 495, 497 (10th Cir. 2002) (same). Because Plaintiff has a meaningful
postdeprivation remedy available the Court will dismiss this action as legally frivolous.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not taken in good faith, and, therefore, in forma pauperis status is denied
for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If
Plaintiff files a notice of appeal he must also pay the full $505.00 appellate filing fee or
file a motion to proceed in forma pauperis in the Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Complaint and action are dismissed as legally frivolous
pursuant to 28 U.S.C. § 1915A(b)(1). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that the Motion for Release, ECF No. 9, is denied as
DATED at Denver, Colorado, this 12th
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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