Bacon v. Hamilton et al

Filing 90

ORDER ADOPTING 81 REPORT AND RECOMMENDATIONS - dismissing case without prejudice. Signed by Judge David Nuffer on 6/5/18 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MICHAEL A. BACON,
Plaintiff,

MEMORANDUM DECISION AND
ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
Case No. 2:15-cv-00179-DN-BCW
CORIE HAMILTON, ET AL.,
District Judge David Nuffer
Defendants.
The Report and Recommendation1 (“R&R”) issued by United States Magistrate Judge
Brooke C. Wells recommends that Defendants’ Motion to Dismiss2 be granted; that the
Plaintiff’s other motions3 be terminated as moot; and that the case be dismissed.
Plaintiff Michael A. Bacon (“Bacon”) timely filed an Objection4 and Memorandum5 in
Support of his Objection to this R&R. Mr. Bacon also untimely filed a second6 and third7
Memorandum in Support of his Objection. Defendants unnecessarily8 filed a response9 to Mr.

1

Report and Recommendation Granting Plaintiff’s Motion to Dismiss and Terminating other Motion as Moot
(“R&R”), docket no. 81, filed April 12, 2018.
Defendant’s Motion to Dismiss for Failure to State a Claim and Memorandum in Support (“Motion to Dismiss”),
docket no. 64, filed Feb. 12, 2018.
2

3

Docket Nos. 62, 65, 71, 73, 74, and 76.

4

Objection to Magistrate Judges [sic] R&R (“Objection”), docket no. 84, filed April 20, 2018.

Memorandum in Support of Objection to Magistrate Judges [sic] R&R (“Memorandum”), docket no. 85, filed
April 25, 2018.
5

Second Memorandum in Support of Objection to Magistrate Judges [sic] R&R (“Second Memorandum”), docket
no. 86, filed April 30, 2018.
6

Third Memorandum in Support of Objection to Magistrate Judges [sic] R&R (“Third Memorandum”), docket no.
88, filed May 9, 2018.
7

8

see DUCivR 72-3(b).

9

Response to Plaintiff’s Objections to Report and Recommendation (“Response”), docket no. 87, filed May 1, 2018.

Bacon’s Objection. Because Mr. Bacon is representing himself pro se, all of the above were
considered in preparing this decision. De novo review has been completed of those portions of
the R&R, the proposed findings and recommendations to which objection was made, including
the record that was before Magistrate Judge Wells and the reasoning set forth in the R&R.10 For
the reasons discussed below, Plaintiff’s objections are OVERRULED and the R&R is
ADOPTED, granting Defendant’s Motion to Dismiss for lack of subject matter jurisdiction.
In her R&R, Magistrate Judge Wells concludes that Mr. Bacon’s § 1983 claim should be
dismissed for “lack of ripeness and subject matter jurisdiction as Bacon has not fully pursued
available state-court remedies,”11 specifically by failing to file a petition under Utah Code § 243-104. In Pinder v. Mitchell12 the Tenth Circuit describes three types of § 1983 cases, two of
which do not require exhausting state remedies while the third does. The two types that do not
require exhausting state remedies are those which allege “(1) deprivations of rights guaranteed
by the Bill of Rights and incorporated by the Due Process Clause, [or] (2) substantive due
process rights.”13 The third type of case — that requires exhausting state remedies — arises
“when a plaintiff complains that his procedural due process rights were violated.”14
Mr. Bacon’s § 1983 claim is of the third type, that requires exhausting available state
remedies. In his Second Amended Complaint,15 Mr. Bacon alleges the Defendants improperly
disposed of Mr. Bacon’s property after seizing it in connection with his arrest for bank robbery.16

10

28 U.S.C. § 636(b).

11

R&R at 6.

12

Pinder v. Mitchell, 658 Fed.Appx. 451, 453-54 (10th Cir. 2016).

13

Id. (citing Zinermon v. Burch, 494 U.S. 113, 124–25, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)).

14

Id.

15

Second Amended Civil Rights Complaint (“Complaint”), docket no. 50, filed 12/29/2017.

16

Id. at 7; See generally United States v. Bacon, Case No. 2:14-cr-563.

2

Mr. Bacon claims a violation of his procedural due process rights. Therefore, Mr. Bacon’s
§ 1983 claim falls under the third category described in Pinder. The Tenth Circuit requires Mr.
Bacon to exhaust all state remedies prior to pursuing any federal remedies.
In his Objection, Mr. Bacon asserts that filing under Utah Code § 24-3-104 would be
futile and inadequate because (1) § 24-3-104 provides relief by returning seized property which
he claims the government does not hold,17 and (2) the Utah statute does not provide for monetary
damages in the event the government improperly disposes of held property.18
The Tenth Circuit in Pinder ruled that post-deprivation remedies must still be sought
unless they are inadequate.19 There is no dispute that Mr. Bacon’s property was seized by the
Utah State government. Even though there was a federal hold on the property due to a pending
federal case, the property was physically held by the Salt Lake Police Department. It was this
state entity that allegedly improperly disposed of Mr. Bacon’s property. The property was never
held by this court or a federal entity. Therefore, the proper forum for recovery of those items is in
the Utah State courts. Mr. Bacon even stated that he believed, after the property had been
improperly disposed of, that some of it had been again impounded by a state entity, the West
Bountiful Police Department.20 Therefore it appears some of the property is again in possession
of state authorities. Mr. Bacon has the burden of proving that state remedies are inadequate.21 It
appears that some of the property is still with state authorities so that § 24-3-104 is adequate

17

Objection at 3.

18

Third Memorandum at 3.

19

Pinder, 658 Fed.Appx. at 453-55.

20

Official Transcript of Hearing held April 20, 2016, case no. 2:14-cr-00563-DN, docket no. 55 at 19-20, filed Aug.
9, 2016.
21

Wallace v. Carver, 2:06-cv-780-DS, 2008 WL 4154413, at *2 (D. Utah 2008) (unpublished) (citing Hudson v.
Palmer, 468 U.S. 517, 535 (1984) (holding that Plaintiff has the burden of proving state remedies are inadequate and
state remedies cannot be deemed inadequate simply because they do not allow the plaintiff to recover the full
amount of the lost property.)).

3

(under Wallace and Pinder) because the property may be recovered from the West Bountiful
State Department. Because Pinder requires post-deprivation remedies to be exhausted, and
because § 24-3-104 is an adequate remedy that Mr. Bacon must exhaust before making a § 1983
claim in federal court, his Complaint fails to state a claim upon which this court can grant relief.
In the R&R, Magistrate Judge Wells also alludes to two other potential remedies
available at the state court level. The first is a tort claim under Utah Code Ann. § 63G-7301(2)(a), and the second is a takings claim under the Utah Constitution as described in Pinder.22
Mr. Bacon makes no mention of either of these remedies available to him in his Objection, nor in
any of his Memoranda in Support of his Objection. As such, any objections Mr. Bacon has about
these claims are effectively waived and they stand as possible state remedies he must exhaust
before bringing a § 1983 claim in federal court. Even had Mr. Bacon timely objected to these
remedies as being inadequate, the analysis under Pinder would be the same: where postdeprivation remedies are provided by the state, they are not inherently inadequate and must be
exhausted.23
In his complaint, Mr. Bacon cites to two cases, Wingfield24 and Brown,25 to support his
allegation that his claim is properly before the federal court system and should therefore be
heard. However, in both of these cases the federal government obtained original physical
possession of the property in question. Here, the property was never held by the federal
government. Therefore, Wingfield and Brown are distinguishable and do not apply.

22

Pinder, 658 Fed.Appx. at 456 (citing Utah Const. art. 1, § 22)

23

Pinder, 658 Fed.Appx. at 453-55.

24

U.S. v. Wingfield, 822 F.2d 1466 (10th Cir. 1987).

25

Brown v. U.S., 692 F.3d 550 (6th Cir. 2012).

4

In his Memorandum in support of his Objection, Mr. Bacon attempts to alter his
complaint to include an allegation that the Defendants violated his Fourth Amendment rights.26
However, Mr. Bacon failed to request this amendment before the submission of the R&R, and
therefore his Motion to Amend is not timely for this action and will not be considered.
The analysis and conclusion of Magistrate Judge Wells are correct. Therefore, the
analysis and conclusion of Magistrate Judge Wells are accepted and the R&R27 is adopted.
ORDER
IT IS HEREBY ORDERED that the R&R28 is ADOPTED and this case is DISMISSED
without prejudice.
The Clerk is directed to close the case.
Dated June 5, 2018.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

26

Memorandum, docket no. 85 at 3.

27

R&R, docket no. 81.

28

Id.

5