Shephard v. Cox et al
MEMORANDUM OPINION. Signed by Magistrate Judge Jane M. Virden on 11/13/23. (jla)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
No. 4:23CV178- JMV
WARDEN BRENDA COX, ET AL.
MEMORANDUM OPINION DISMISSING CASE FOR FAILURE TO
STATE A VALID CLAIM UNDER 42 U.S.C. § 1983
This matter comes before the court on the pro se prisoner plaintiff’s complaint filed under 42
U.S.C. § 1983, challenging the actions of the defendants during his stay at the Bolivar County
Regional Correctional Facility. For the purposes of the Prison Litigation Reform Act, the court notes
that the plaintiff was incarcerated when he filed the instant suit. See 42 U.S.C. § 1997e. The plaintiff
has brought this case under 42 U.S.C. § 1983, which provides a federal cause of action against
“[e]very person” who under color of state authority causes the “deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.
The plaintiff alleges that, on August 13, 2022, the defendants took his fan and television set
from him and lost them. On October 18, 2023, the court ordered the plaintiff to show cause why the
case should not be dismissed for failure to state a claim upon which relief could be granted. Doc. 7.
The plaintiff has not responded to the order, and the deadline to do so has expired. As the plaintiff has
not shown cause, the instant case will be dismissed with prejudice for failure to state a constitutional
Taking of Property Without Due Process of Law
The random and unauthorized deprivation of a prisoner’s property by a state actor does not
violate the prisoner’s due process rights if the state provides an adequate post-deprivation remedy. See
Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 541-44 (1981),
overruled in part by Daniels v. Williams, 474 U.S. 327, 330-31 (1986). This rule, the Parratt/Hudson
doctrine, provides “that no constitutional claim may be asserted by a plaintiff who was deprived of his
liberty or property by negligent or intentional conduct of public officials, unless the state procedures
under which those officials acted are unconstitutional or state law fails to afford an adequate postdeprivation remedy for their conduct.” Martin v. Dallas County, Tex., 822 F.2d 553, 555 (5th Cir.
1987); see also Hudson, 486 U.S. at 533, Daniels, 474 U.S. at 330-31; White v. Epps, 411 Fed.Appx.
731 (5th Cir. 2011). Thus, the initial question regarding this claim is whether Mississippi law affords
him an adequate post-deprivation remedy for his loss.
In most circumstances, suits against the Mississippi government would be controlled by the
Mississippi Tort Claims Act, Miss. Code Ann. § 11-46-9 (“MTCA”), which became effective on April
1, 1993. As to suits filed by prisoners, the MTCA states:
(1) A governmental entity and its employees acting and within the course scope of
their employment or duties shall not be liable for any claim:
(m) Of any claimant who at the time the claim arises is an inmate of any detention
center, jail, workhouse, penal farm, penitentiary or other such institution, regardless of
whether such claimant is or is not an inmate of any detention center, jail, workhouse,
penal farm, penitentiary or other such institution when the claim is filed.
Miss. Code Ann. § 11-46-9(1)(m). At first blush, this statute would seem to foreclose any remedies
the plaintiff may have under state law. However, the plaintiff’s remedy for the taking of property
arises directly from the Constitution of the State of Mississippi, which cannot be circumvented
through a state statute. Pickering v. Langston Law Firm, P.A., 88 So.3d 1269 (Miss. 2012). The
unlawful taking of an inmate’s property can violate Article 3, Section 17 of the Constitution of the
State of Mississippi. Bishop v. Reagans, 2012 WL 1804623 (S.D. Miss.), citing Johnson v. King, 85
So.3d 307 (Miss. App. 2012). Article 3, Section 17 of the Mississippi Constitution reads:
Private property shall not be taken or damaged for public use, except on due
compensation being first made to the owner or owners thereof, in a manner to be
prescribed by law; and whenever an attempt is made to take private property for a use
alleged to be public, the question whether the contemplated use by the public shall be
a judicial question, and, as such, determined without regard to legislative assertion that
the use is public.
The circumstances in Johnson are legally indistinguishable from those in the instant case.
The prison officials in that case confiscated Johnson’s drinking mug and disposed of it.
Johnson v. King, 85 So.3d 307, 311-312 (Miss. App. 2012). Johnson had purchased the mug from the
canteen with his own money. Id. The mug, as purchased, was not contraband, and Johnson had not
modified it in such a way to turn it into contraband. Id. The Mississippi Court of Appeals held that,
under these circumstances, the taking of Johnson’s mug violated the Mississippi Constitution, and
prison officials had to either replace the mug or compensate Johnson for its fair value. Id. The facts in
Johnson mirror those in the present case. As such, Shephard has an adequate remedy under state law
for the taking of his property without due process of law, and his allegations will be dismissed with
prejudice for failure to state a claim upon which relief could be granted. A final judgment consistent
with this memorandum opinion will issue today.
SO ORDERED, this, the 13th day of November, 2023.
/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE
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