Mitchell v. Sgt Judah et al

Filing 3

DISMISSAL ORDER - the Court FINDS that Plaintiff has failed to state a claim upon which relief can be granted. Accordingly, this case is hereby DISMISSED. Plaintiffs motion to proceed in forma pauperis is MOOT. Therefore, the Court does not rule on Plaintiffs request to proceed in forma pauperis. Signed by District Judge Mark S. Davis and filed on 10/15/2012; copies distributed 10/16/2012. (bnew)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division

CLEr.r., -^ J.-3TRICT COURT
NORFOLK. VA

GABRIEL MITCHELL,

Plaintiff,
ACTIONNO.2:12cv550

SGT. JUDAH,
DEPUTY FREEMAN, and
DEPUTY TONEY,
Defendants.

DISMISSAL ORDER

Plaintiff, a Virginia inmate, brings this pro se action pursuant to 42 U.S.C. § 1983 to redress

an alleged violation of Plaintiffs constitutional rights. In the Complaint, Plaintiff claims that his

personal property was lost, the Jail sent some of his mail back to the senders, he did not receive two
hot plates that were ordered by his girlfriend, the food is not up to Plaintiffs standards, sheets and
towels are not laundered often enough, and medical says that because Plaintiffs support shoes were

lost with his personal property, he will have to purchase another pair from the commissary. Plaintiff
seeks "70.$" and payment for his lost property.

Pursuant to 28 U.S.C. § 1915A1, the Court must engage in a preliminary screening of cases
1 1915A. Screening
(a) Screening.~The court shall review, before docketing, if feasible or, in any event, as soon
as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from
a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal. —On review, the court shall identify cognizable claims or dismiss
the complaint, or any portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted;
or

(2) seeks monetary relief from a defendant who is immune from such relief.

in which prisoners seek redress from a governmental entity or officer or employee ofa governmental
entity. 28 U.S.C. § 1915A(a). The Court must identify cognizable claims or dismiss a complaint,

or any portion ofa complaint, if it is "frivolous, malicious, or fails to state a claim upon which relief
can be granted," or "seeks monetary relief from a defendant who is immune from such relief." 28
U.S.C. § 1915A(b).

Based upon careful consideration ofPlaintiffs pleadings, the Court determines that dismissal
of this action is appropriate under 28 U.S.C. § 1915A(b)(l). Section 1915A(b)(l) provides for the
dismissal ofa complaint that fails to state a claim upon which relief can be granted. In enacting 28

U.S.C. § 1915A, Congress appropriated the familiar standard of review applicable to motions to
dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In
reviewing Plaintiffs Complaint pursuant to the mandated screening process, therefore, the Court

applies the same standard. The facts alleged by Plaintiff, though not the legal conclusions, must be
taken as true. Loe v. Armistead. 582 F.2d 1291, 1292 (4th Cir. 1978); Ashcroft v. Iqbal. 556 U.S.
662, 678 (2009). A pro se complaint should survive only when a plaintiff has set forth "enough
facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twomblv. 550 U.S.

544,570 (2007). "Factual allegations must be enough to raise a right to relief above the speculative
level" and beyond the level that is merely conceivable. Id at 545; Iqbal, 556 U.S. at 680.
A pro se complaint involving civil rights issues should be liberally construed. Gordon v.

Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). However, a court is not required "to accept as true a

(c) Definition. —As used in this section, the term "prisoner" means any person incarcerated
or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent
for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or
diversionary program.

legal conclusion couched as a factual allegation," Papasan v. Allain. 478 U.S. 265, 286 (1986), or
a legal conclusion unsupported by factual allegations. Iqbal. 556 U.S. at 681.

Dismissal may be

appropriate when a complaint contains a detailed description of underlying facts that fails to state
a viable claim. Estelle v. Gamble. 429 U.S. 97, 106-09 (1976); Twomblv. 550 U.S. at 558.

Plaintiff claims that when he left the Jail to go to court, he was told he had to send his

property home. Nevertheless, Plaintiff wished to leave some of his property in case he returned to
the Jail. Plaintiffdidretum to the Jail. However, his property could not be found. Deprivations of

personal property that are random unauthorized acts of state officials do not offend due process if
due process is satisfied by adequate post-deprivation state remedies. Parratt v. Taylor. 451 U.S. 527,
543 (1981), overruled on other grounds bv Daniels v. Williams. 474 U.S. 327 (1986). Furthermore,
failure of officials to take due care is not sufficient to rise to the level of a constitutional violation.

Davidson v. Cannon. 474 U.S. 344, 347-48 (1986). 42 U.S.C. § 1983 was intended to vindicate

federal rights, not tort claims for which there are adequate state law remedies. Wright v. Collins. 766
F.2d 841, 849 (4th Cir. 1985) (citing Tucker v. Duncan. 499 F.2d 963, 965 n.l (4th Cir. 1974)).

Plaintiffs Complaint sounds in tort, and does not rise to the level of a constitutional violation. The

Virginia Tort Claims Act and Virginia tort law provide an adequate remedy for loss of Plaintiffs
personal property. Wadhams v. Procunier. 772 F.2d 75, 77-78 (4th Cir. 1985).
Plaintiff has numerous other complaints that simply do not rise to a level of constitutional
significance. Plaintiffs claims regarding his support shoes and hot plates ordered by his girlfriend
are claims of property deprivation that do not amount to a constitutional violation. In addition,
Plaintiff claims that on two occasions letters from his family containing photographs were returned
to his family. Plaintiff claims that the reasons differed on each of the two occasions. However,

Plaintiff does not claim that the regulations that mandated the return of his mail are unreasonable.

See Thornbueh v. Abbott. 490 U.S. 401, 409 (1989). Plaintiff alleges no injury as a result of his
claims related to either food service or laundry.

Plaintiff also claims that a letter from his attorney was opened outside his presence. The

negligent act of opening a prisoner's legal mail, on limited occasions, and depriving the prisoner of
his right to be present when his legal mail is opened does not state a cognizable claim under § 1983,
although it may demonstrate a violation of departmental operating procedures. Bryant v. Winston.
750 F. Supp. 733, 734 (E.D. Va. 1990); Oliver v. Powell. 250 F. Supp. 2d 593 (E.D. Va. 2002).
Plaintiff does not allege that the opening of his legal mail impacted his right ofaccess to the courts.
In conclusion, the Court FINDS that Plaintiff has failed to state a claim upon which relief

can be granted. Accordingly, this case is hereby DISMISSED. Plaintiffs motion to proceed in
forma pauperis is MOOT. Therefore, the Court does not rule on Plaintiffs request to proceed in
forma pauperis.

Moreover, 28 U.S.C. § 1915(g) prohibits a prisoner from bringing a civil action or appealing
a judgment in a civil action under section 1915 if "the prisoner has, on 3 or more 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 harm."

Accordingly, the Court CAUTIONS Plaintiff that this action was dismissed by the Court for failure
to state a claim upon which relief can be granted.

Plaintiff may appeal from this Dismissal Order by forwarding a written notice of appeal to
the Clerk ofthe United States District Court, United States Courthouse, 600 Granby Street, Norfolk,

Virginia 23510. Said wrillcn notice musl be received by the Clerk within thirty (30) days from the

dale of this Dismissal Order. If Plaintiff wishes to proceed in forma pauperis on appeal, the
application to proceed in forma pauperis is to be submitted lo the Clerk. United States Court of
Appeals. Fourth Circuit. 1100 E. Main Street. Richmond. Virginia 23219.
The Clerk is DIRECTED to mail a copy of this Dismissal Order to Plaintiff.
IT IS SO ORDERED.

Mark S. Davis

UNITED STATES DISTRICT JUDGE

Norfolk. Virginia

October^ .2012