Jackson v. Wilkerson et al

Filing 57

OPINION AND ORDER by Judge Ronald A. White : Granting 54 Motion to Dismiss Case as Frivolous. (case terminated) (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
ROBERT EARL JACKSON,
Plaintiff,
v.
TIM WILKINSON et al.,
Defendants.

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No. CIV 13-081-RAW-SPS

OPINION AND ORDER
This action is before the court on the defendants’ motion to dismiss and the court’s
own motion to consider dismissal of the case as frivolous under 28 U.S.C. § 1915. The court
has before it for consideration plaintiff’s amended complaint (Dkt. 52), the defendants’
motion (Dkt. 54), and plaintiff’s response to the motion (Dkt. 55).
Plaintiff, an inmate in the custody of the Oklahoma Department of Corrections (DOC)
who is incarcerated at Mack Alford Correctional Center (MACC) in Stringtown, Oklahoma,
brings this action under the authority of 42 U.S.C. § 1983, seeking relief for alleged
violations of the Fifth, Eighth, and Fourteenth Amendments during his incarceration at Davis
Correctional Facility (DCF) in Holdenville, Oklahoma. The defendants are DCF Warden
Tim Wilkinson, DCF Property Officer Cartwright, and DCF Officer Rankin.
Plaintiff alleges that on September 22, 2009, he arrived at DCF from Oklahoma State
Penitentiary (OSP) with his television, which the property officer found had been destroyed
in transit.

Pursuant to the facility’s informal resolution procedures, plaintiff filed a

lost/damaged property claim. An informal resolution between plaintiff and DCF unit staff
was held, and it was agreed that DCF would replace the destroyed television. Plaintiff,
however, did not understand that the replacement was a “loaner” television.
On February 17, 2014, plaintiff was involved in an incident in the chow hall when
DCF staff used force and took his MP3 player, so he could be handcuffed. Plaintiff advised

Defendant Officer Rankin that the MP3 player was lost during the struggle, and probably was
still in the chow hall. Plaintiff claims Rankin was “of the mindset” that there was no duty
to find the lost property, because plaintiff was being transferred to another facility. Plaintiff
was transferred to OSP without his television or MP3 player, so he filed a Request to Staff
to Defendant Warden Wilkinson about the lost property. Wilkinson allegedly was indifferent
to DCF’s obligation to resolve the issue and has refused to replace the television.
Plaintiff is seeking reimbursement for his damaged television and for his lost MP3
player and charger. He also seeks punitive damages for the mental harm of imprisonment
and solitary confinement without a television or MP3 player, as well as compensatory
damages for the cost of this lawsuit.
The defendants allege plaintiff has failed to state a claim upon which relief can be
granted. As an initial matter, plaintiff’s amended complaint does not assert the defendants
were responsible for the damage to his television. He acknowledges he arrived at DCF with
a broken television. His argument about the television is that Defendants Wilkinson and
Cartwright denied him due process and his property rights by not honoring an alleged
informal agreement to replace the damaged television. Plaintiff believed this agreement
meant he could take the replacement television with him when he transferred to another
facility. He considers the alleged agreement to be a “contract” that was breached.
Regarding plaintiff’s lost MP3 player, it is apparent from the face of the amended
complaint that the defendants were not responsible for the loss of the device. Plaintiff admits
he lost the MP3 player during a struggle that resulted in his being handcuffed, but contends
the DCF staff should have taken measures to find the device. He has provided no legal
authority that the failure to search for his property under these circumstances states a claim
under 42 U.S.C. § 1983.
Random and unauthorized deprivation of a prisoner’s property does not violate due
process, so long as postdeprivation remedies are available. See Winters v. Board of County
Comm’rs, 4 F.3d 848, 856-57 (10th Cir. 1993) (citing Hudson v. Palmer, 468 U.S. 517, 5312

33 (1984) and Parratt v. Taylor, 451 U.S. 527, 541-44 (1981), overruled in part on other
grounds by Daniels v. Williams, 474 U.S. 327 (1986)); see also Hall v. Bellmon, 935 F.2d
1106, 1113 (10th Cir. 1991) (valid § 1983 claim for loss of prisoner’s property must include
allegations of deliberate conduct) (citing Daniels, 474 U.S. at 333-34); Bryson v. City of
Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990) (negligent conduct does not implicate due
process, therefore cannot form basis for § 1983 claim).
Here, the court finds plaintiff has not alleged the defendants intentionally deprived
him of his property. He claims he submitted a lost/damaged property claim for the television,
but he did not understand that the replacement television in the informal resolution would
only be loaned to him. This lack of clarity in the informal resolution process does not state
a claim under § 1983. He has made no allegation of filing a property claim for the MP3
player and charger, so he has not taken advantage of his post-deprivation remedy.
As for plaintiff’s claim that the deprivation of his television and MP3 player violated
the Eighth Amendment by causing him to suffer from emotional distress, “[n]o Federal civil
action may be brought by a prisoner confined in a jail, prison, or other correctional facility,
for mental or emotional injury suffered while in custody without a prior showing of physical
injury . . . .” 42 U.S.C. § 1997e(e). While claims for mental and emotional distress can be
brought pursuant to § 1983, § 1997e(e) provides that “such a suit cannot stand unless the
plaintiff has suffered a physical injury in addition to mental or emotional harms.” Perkins
v. Kansas Dep’t of Corrections, 165 F.3d 803, 807 (10th Cir. 1999) (quotations omitted).
Plaintiff has not made this showing.
Based on the foregoing reasons the court finds the allegations in plaintiff’s complaint
are vague and conclusory, and the allegations do not rise to the level of a constitutional
violation. The Tenth Circuit Court of Appeals consistently has held that bald conclusions,
unsupported by allegations of fact, are legally insufficient, and pleadings containing only
such conclusory language may be summarily dismissed or stricken without a hearing. Dunn
v. White, 880 F.2d 1188, 1197 (10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990); Lorraine
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v. United States, 444 F.2d 1 (10th Cir. 1971). “Constitutional rights allegedly invaded,
warranting an award of damages, must be specifically identified. Conclusory allegations will
not suffice.” Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981) (citing Brice v. Day, 604
F.2d 664 (10th Cir. 1979), cert. denied, 444 U.S. 1086 (1980)).
The court authorized commencement of this action in forma pauperis under the
authority of 28 U.S.C. § 1915. Subsection (e) of that statute permits the dismissal of a case
when the court is satisfied that the complaint is without merit in that it lacks an arguable basis
either in law or fact. Nietzke v. Williams, 490 U.S. 319 (1989); Yellen v. Cooper, 828 F.2d
1471, 1475 (10th Cir. 1987).
ACCORDINGLY, this action is, in all respects, DISMISSED as frivolous. This
dismissal shall count as a STRIKE, pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED this 21st day of September 2015.
Dated this 21st day of September, 2015.
J4h4i0

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