Coburn v. Pasha et al

Filing 7

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Coburn's Complaint 2 is DISMISSED for failure to state a claim. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Any appeal of this decision would not be taken in good faith. Signed by Judge Donald W. Molloy on 3/22/2012. Mailed to Coburn. (TAG, )

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FILED MAR 2 2 2012 PATRICK E. DUFFY. CLERK M:-:;IS;:-;S""OU'-;;-LA~ By""'oe""P""'UTY=O;;C'"""LE""'RK"-'. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION COLETON CHRISTOUS COBURN, Plaintiff, vs. SGT. PASHA and PROPERTY OFFICER MARTHALER, Defendants. ) ) ) ) ) ) ) ) ) ) CV ll-74-H-DWM-RKS ORDER ----------------------) On December 14, 2011, Coleton Christous Coburn filed a complaint alleging that the defendants have deprived him of his personal property, a television set from which Coburn had removed the battery. He alleged he was told it was taken because it had been altered. (Doc. 2 at 5.) United States Magistrate Judge Strong entered Findings and Recommendations on February 14,2012, recommending that the complaint be dismissed for failure to state a claim upon which relief may be granted. Judge Strong construed Coburn's allegation as a procedural due process claim brought pursuant to the Fourteenth Amendment ofthe United States Constitution. Coburn filed objections (doc. 6) and is therefore entitled to de novo review ofthe specific findings and recommendations to which he objects. 28 U.S.C. § 636(b)(1). First, he argues that the claim he raises is theft. Second, he argues that removing a battery from a television does not alter the television: "Altering is destroying. Altering is taking an object from [its] original fonn in a way that it cannot be put back together.... " (Doc. 6 at I.) Because the parties are familiar with the facts, they will not be restated here except as necessary to explain the Court's decision. Coburn has not alleged a federal theft claim. As found by Judge Strong, the federal claim that can be construed from his allegations is a due process claim-Coburn has been deprived of property by agents ofthe state. However, these facts alone are not sufficient to establish a Fourteenth Amendment claim. Coburn must also show he was not given due process, and he cannot do so here. Authorized deprivations ofproperty are pennissible if carried out pursuant to a regulation that is reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 96-97 (1987). Ifthe intentional deprivation Coburn alleges was not sanctioned by such a regulation, the Montana Tort Claims Act, Mont. Code Ann. §§ 2-9-101(1), 2-9-108(2) (2007), provides an adequate postdeprivation remedy. Hudson v. Palmer, 468 US. 517, 530-33 (1984). Thus, there is no constitutional violation. Though Coburn disputes the prison's interpretation ofwhat it means to alter property, the Court may not second-guess the details of a prison policy that is reasonably related to legitimate penological interests. Turner, 482 U.S. at 89; Grummett v. Rushen, 779 F.2d 491,493 (9th Cir. 1985) ("The adoption and execution ofpolices and practices by prison administrators is to be accorded deference by the judiciary.") However, the Court notes that Coburn's definition is not the only definition of "alter." Merriam-Webster states that to "alter" something is "to make [it] different without changing [it] into something else." Merriam-Webster Online Dictionary (Merriam-Webster 2012). Removing a battery from a television may reasonably fit within this definition. Accordingly, Coburn fails to state a claim upon which relief may be granted in this court, and dismissal ofthis case is warranted. IT IS HEREBY ORDERED: 1. Judge Strong's Findings and Recommendations (doc. 4) are adopted in full. 2. Coburn's Complaint (doc. 2) is DISMISSED for failure to state a claim upon which reliefmay be granted. 3. The Clerk of Court is directed to close this matter and enter judgment pursuant to Rule 58 ofthe Federal Rules of Civil Procedure. 4. The Clerk of Court is directed to have the docket reflect that this dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g) because Mr. Coburn's Complaint fails to state a claim upon which relief may be granted. 5. The Clerk of Court is directed to have the docket reflect that the Court certifies pursuant to Fed. R. App. P. 24(a)(3)(A) that any appeal ofthis decision would not be taken in good faith. The record makes plain the instant Complaint is frivolous as it lacks arguable substance in law or fact. Dated this ~~ay of March 2012. ,District Judge United S tes Dis ict Court 0110

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