HAMMOND v. LANCASTER CITY BUREAU OF POLICE et al
MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 5/30/17. 5/30/17 ENTERED AND COPIES MAILED TO PRO SE PLFF., 1 COPY TO LEGAL BIN. (pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KHALIL K. HAMMOND
LANCASTER CITY BUREAU OF
POLICE, et al.
MAY 30, 2017
Plaintiff Khalil K. Hammond, a prisoner incarcerated at the State Correctional Institution
at Fayette, claims that his constitutional rights were violated by the destruction of his property.
He seeks leave to proceed in forma pauperis. The Court will grant plaintiff leave to proceed in
forma pauperis and dismiss his complaint.
According to the complaint, on January 5, 2010, Detective Jarrad Berkihiser seized fiftythree pieces of plaintiff’s mail from the cell where plaintiff was incarcerated at the Lancaster
County Prison. Included in the seized mail were family photographs that were meaningful to
plaintiff. Plaintiff filed several motions in his criminal case seeking the return of his property
and was granted a hearing.
At the hearing on April 17, 2015, the Assistant District Attorney represented that any
property not already returned to plaintiff had been discarded or destroyed. Accordingly, the
judge presiding over the case denied plaintiff’s motion because he was unable to order the return
of plaintiff’s property. Plaintiff alleges that no one from the District Attorney’s Office or the
Lancaster City Bureau of Police contacted him to let him know that his property would be
destroyed prior to destroying the property. He believes that employees of the Lancaster City
Bureau of Police threw his property away to be vindictive and malicious, and notes that they
failed to follow applicable procedures for returning property.
Based on those allegations, plaintiff initiated the instant lawsuit pursuant to 42 U.S.C. §
1983 against Detective Berkihiser, the Lancaster City Bureau of Police, and Lancaster City. He
asserts claims under the Fourth Amendment, Eighth Amendment, Due Process Clause, and state
law based on the seizure and destruction of his mail.
STANDARD OF REVIEW
Plaintiff’s motion to proceed in forma pauperis is granted because it appears that he is
incapable of prepaying the fees to commence this civil action.1 Accordingly, 28 U.S.C. §
1915(e)(2)(B)(ii) requires the Court to dismiss the complaint if it fails to state a claim. To
survive dismissal for failure to state a claim, the complaint must contain “sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quotations omitted). Additionally, the Court may dismiss claims
based on an affirmative defense if the affirmative defense is obvious from the face of the
complaint. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006); cf. Ball v. Famiglio, 726
F.3d 448, 459 (3d Cir. 2013), abrogated on other grounds by, Coleman v. Tollefson, 135 S. Ct.
1759, 1763 (2015). As plaintiff is proceeding pro se, the Court must construe his allegations
liberally. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
A. Fourth Amendment Claims
Plaintiff’s Fourth Amendment claims based on the seizure of his mail are time-barred.
Pennsylvania’s two-year statute of limitations applies to those claims. See 42 Pa. Cons. Stat. §
As plaintiff is a prisoner, he will still be obligated to pay the filing fee in installments pursuant
to 28 U.S.C. § 1915(b).
5524; Wallace v. Kato, 549 U.S. 384, 387 (2007). The limitations period began to run from the
time plaintiff “knew or should have known of the injury upon which [his] action is based.”
Sameric Corp. of Del., Inc. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998). Plaintiff was
aware of the seizure of his property when his mail was taken from his cell on January 5, 2010,
but he did not file this case until April of 2017, more than two years after his claims accrued.
Accordingly, any claims based on the seizure of plaintiff’s mail are time-barred.
B. Eighth Amendment Claims
The Eight Amendment precludes the imposition of cruel and unusual punishments on
those convicted of crimes. Rhodes v. Chapman, 452 U.S. 337, 345 (1981). To violate the Eighth
Amendment, the challenged conduct must be “objectively, sufficiently serious” such that it
“result[s] in the denial of the minimal civilized measure of life’s necessities.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (citations and internal quotation marks omitted). Although
the Court is sympathetic to the fact that the destroyed pictures were valuable to plaintiff, the
conduct at issue here is not objectively sufficiently serious by Eighth Amendment standards to
state a plausible claim. See Atwell v. Metterau, 255 F. App'x 655, 658 (3d Cir. 2007) (per
curiam) (“[Plaintiff’s] allegations regarding the deprivation of his property did not state
an Eighth Amendment claim because he was not deprived of the minimal civilized measure of
C. Due Process Claims
Plaintiff’s due process claims fail because Pennsylvania law—specifically, the Pennsylvania
Tort Claims Act—provides plaintiff with an adequate remedy for an intentional deprivation of
his property. See Shakur v. Coelho, 421 F. App'x 132, 135 (3d Cir. 2011) (per curiam)
(“Pennsylvania provides a remedy for intentional wrongs committed by state officials through
the Pennsylvania Tort Claims Act, 42 Pa.C.S. §§ 8541–8546.”); Tapp v. Proto, 404 F. App’x
563, 567 (3d Cir. 2010) (per curiam) (state tort action provided adequate remedy for county
prison officials’ wrongful appropriation of a photograph of plaintiff’s girlfriend). In other words,
plaintiff cannot prevail on his due process claims because state procedures are available to
plaintiff to address the intentional destruction of his property.
D. State Law Claims
As the Court has dismissed all of plaintiff’s federal claims, the only independent basis for
jurisdiction over plaintiff’s state law claims is 28 U.S.C. § 1332(a). That provision grants district
courts jurisdiction over cases in which “the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between . . . citizens of different States.”
However, the Court cannot exercise diversity jurisdiction over this case because the complaint
fails to establish that the parties are diverse. See Washington v. Hovensa LLC, 652 F.3d 340, 344
(3d Cir. 2011) (an individual is a citizen of the state where he is domiciled, meaning the state
where he is physically present and intends to remain); Pierro v. Kugel, 386 F. App’x 308, 309
(3d Cir. 2010) (a prisoner is presumed to be a citizen of the state where he was domiciled prior to
For the foregoing reasons, the Court will dismiss plaintiff’s complaint. As it is possible
that plaintiff could cure the jurisdictional defect with regard to his state law claims, the Court
will give him leave to file an amended complaint. An appropriate order follows.
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