Fairley v. Culpepper Towing Service
MEMORANDUM AND OPINION dismissing case with prejudice as frivolous pursuant to 28 U.S.C. Section 1915(e)(2)(B)(i). A separate Judgment shall be entered. Additionally, this will be counted as a "strike." Signed by District Judge Keith Starrett on June 26, 2014 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
J.C. FAIRLEY, JR.
CIVIL ACTION NO. 2:14-cv-35-KS-MTP
CULPEPPER TOWING SERVICE
This cause is before the Court, sua sponte, for consideration of dismissal. Pro se Plaintiff
J.C. Fairley, Jr., is incarcerated in the Forrest County Jail, and he brings this Complaint pursuant
to 42 U.S.C. § 1983. The named Defendant is Culpepper Towing Service. The Court has
considered and liberally construed the pleadings. As set forth below, this case is dismissed.
Plaintiff states that he was arrested for D.U.I. and eluding a law enforcement officer on
December 17, 2013, by a City of Hattiesburg Police Officer and taken to the Forrest County Jail.
Plaintiff states that the 1995 Toyota Camry he was driving at the time of his arrest, which
contained over $6,000.00 in cash and other personal property, was towed by Defendant
Culpepper Towing Service. Plaintiff complains that his family members attempted to retrieve
the vehicle on January 3, 2014, and again on January 16, 2014, but the vehicle could not be
found. Plaintiff alleges that his family members were informed that the vehicle had been towed
to a location on Highway 11 in Jones County, but when the family members went to this location
it was not there. Plaintiff states that his family members then met with Lieutenant Shannon
Harris, an internal affairs officer of the Hattiesburg Police Department, who purportedly
informed them that Culpepper Towing Service is employed by the City of Hattiesburg Police
Department and that it was a violation of city ordinances for the vehicle to be taken outside of
the City of Hattiesburg to neighboring Jones County. As relief, Fairley seeks the return of his
1995 Toyota Camry and the vehicle’s contents or reimbursement for the cost of the vehicle and
the lost personal property that was contained within the vehicle.
The in forma pauperis statute mandates dismissal “at any time” if the Court determines an
action “fails to state a claim on which relief may be granted” or “is frivolous or malicious.” See
28 U.S.C. § 1915 (e)(2)(B). Since the Court has permitted Fairley to proceed in forma pauperis
in this action, his Complaint is subject to sua sponte dismissal under § 1915 (e)(2).
In order to have a viable claim under 42 U.S.C. § 1983, a plaintiff must (1) allege a
violation of rights secured by the Constitution or laws of the United States and (2) demonstrate
that the alleged deprivation was committed by a person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988); Daniel v. Ferguson, 839 F.2d 1124, 1128 (5th Cir. 1988). To be
considered a state actor under § 1983, a Defendant must “exercise power possessed by virtue of
state law and made possible only because the wrongdoer is clothed with authority of state law.”
West, 487 U.S. at 49 (citing United States v. Classic, 313 U.S. 299, 326 (1941)). Plaintiff
maintains that Defendant Culpepper Towing Service is an employee of the City of Hattiesburg
Police Department and his vehicle was towed incident to his arrest. The Court will assume,
without deciding, that Defendant Culpepper Towing Service qualifies as a state actor for the
purposes of this case.
Even if Defendant Culpepper Towing Service is considered a state actor, a claim of
negligence is not actionable under § 1983. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991). To the extent Plaintiff may be claiming his vehicle and belongings were lost due to
negligence, he is not entitled to relief under § 1983. Daniels v. Williams, 474 U.S. 327, 330-31
(1986) (finding inmate’s claim for the negligent loss of his property did not invoke constitutional
To the extent Plaintiff is claiming the loss of his vehicle and belongings was caused by the
random and unauthorized conduct of Defendant Culpepper Towing Service, his claim is
governed by the Parratt/Hudson doctrine. Allen v. Thomas, 388 F.3d 147, 149 (5th Cir.
2004)(citing Hudson v. Palmer, 468 U.S. 517, 534 (1984); Parratt v. Taylor, 451 U.S. 527, 541
(1981), overruled in part by, Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). Under this
doctrine, a property deprivation caused by a state actor’s random and unauthorized conduct does
not violate the Due Process Clause of the Fourteenth Amendment if the state provides an
adequate post-deprivation remedy. Id. “Conduct is not ‘random and unauthorized’ for purposes
of the Parratt/Hudson doctrine if the state ‘delegated to [the defendants] the power and authority
to effect the very deprivation complained of.” Id. (citing Zinermon v. Burch, 494 U.S. 113, 138
(1990)); see also Alexander v. Ieyoub, 62 F.3d 709, 712-13 (5th Cir. 1995)(discussing “random
and unauthorized” element of Parratt/Hudson doctrine).
Plaintiff does not claim that it is the common practice or customary procedure for towed
vehicles to be lost. Plaintiff does allege that his family members followed the customary
procedures by attempting to retrieve the vehicle within the prescribed time limit and at the
appropriate location without any success. Plaintiff also alleges that it was a violation of the City
of Hattiesburg ordinances (a “code violation”) for his vehicle to be towed to Jones County,
which is outside of the “City of Hattiesburg jurisdiction.” Am. Compl.  at 1-2. The Court
finds that Plaintiff alleges “random and unauthorized” conduct on behalf of Defendant
Culpepper Towing Service as necessary for application of the Parratt/Hudson doctrine. See
Taylor v. Town of Dekalb, Miss., No. 4:06cv124TSL-LRA, 2009 WL 1748523, *3 n.5 (S.D.
Miss. June 19, 2009)(finding an intentional taking of property following a lawful seizure would
undoubtedly constitute a “random” and “unauthorized” deprivation).
As stated above, under the Parratt/Hudson doctrine, a property deprivation does not
violate the Due Process Clause if the state provides an adequate post-deprivation remedy.
Mississippi law affords at least two post-deprivation remedies, including actions for conversion
and claim and delivery. Miss.Code Ann. § 11-38-1 (claim and delivery); Wilson v. General
Motors Acceptance Corp., 883 So.2d 56, 68-69 (Miss.2004)(stating the elements for a
conversion claim). Moreover, the Fifth Circuit has held that “Mississippi’s post-deprivation
remedies for civil IFP litigants satisfy due process.” Nickens v. Melton, 38 F.3d 183, 185 (5th
Cir. 1994); White v. Epps, 411 F. App’x 731, 732 (5th Cir. 2011). Because the State of
Mississippi affords Plaintiff an adequate post-deprivation remedy for the alleged deprivation of
his property, no due process violation has occurred. See Porter v. Carpenter, 356 F. App’x 713,
714 (5th Cir. 2009). Therefore, Plaintiff’s cause of action pursuant to 42 U.S.C. § 1983 is
legally frivolous. See Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005)(affirming district
court’s frivolous dismissal of prisoner’s § 1983 claim for property deprivation).
As explained above, the deprivation of Plaintiff’s property does not result in a
constitutional violation because the State of Mississippi provides an adequate post-deprivation
remedy. Therefore, this § 1983 case is dismissed with prejudice as frivolous, pursuant to 28
U.S.C. § 1915 (e)(2)(B)(i).
Since this case is dismissed pursuant to the above-mentioned provision of the Prison
Litigation Reform Act, it will be counted as a “strike.”1 If Fairley receives “three strikes” he will
be denied in forma pauperis status and required to pay the full filing fee to file a civil action or
A Final Judgment in accordance with this Memorandum Opinion will be entered.
SO ORDERED AND ADJUDGED, this the 26th day of June, 2014.
UNITED STATES DISTRICT JUDGE
28 U.S.C. § 1915(g) states “[i]n no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under imminent danger of serious physical
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