United States District Court, N.D. Florida, Tallahassee Division
ORDER AND SECOND REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
proceeding pro se, was granted leave to proceed in forma
pauperis and assessed an initial partial filing fee of
86¢ pursuant to 28 U.S.C. § 1915(b) in an Order
entered on April 29, 2019. ECF No. 4. Plaintiff filed a
response to that Order, ECF No. 5, in which he stated that he
lacked the funds to comply with the prior Order. Upon review,
Plaintiff was given an opportunity to demonstrate that he had
not intentionally spent funds to avoid payment of the partial
filing fee. ECF No. 6. When Plaintiff did not respond to that
Order, a recommendation was entered to dismiss this case for
failure prosecute or comply with a court Order as it appeared
that Plaintiff had abandoned this litigation. ECF No. 7.
Plaintiff filed objections demonstrating his desire to
proceed, ECF No. 7, and this case was remanded to the
undersigned, ECF No. 9, noting that a prisoner should not be
prohibited from bring a civil action because he lacks funds
to pay an initial partial filing fee. Plaintiff is, thus,
permitted to proceed and the original Report and
Recommendation, ECF No. 7, is hereby vacated.
complaint, ECF No. 1, has now been reviewed as is required by
28 U.S.C. § 1915A. Plaintiff alleges that in 2017, he
purchased numerous items from authorized venders, and his
“prison inmate account will show” the items of
property. ECF No. 1 at 5. However, when Plaintiff was transferred
to a different institution on February 15, 2018, his property
was transported by Defendant Glass and inventoried, but
Plaintiff contends the Defendant failed to give him a
“property slip.” Id. at 6. More
importantly, Plaintiff says that some of his property was
missing. Id. He asserts a Fourth Amendment claim for
the unlawful seizure of his property. Id. at 7.
sues Defendant Secretary Mark S. Inch “because he is
responsible for training the staff to properly process inmate
property, per rule.” Id. He also seeks to name
the Secretary as a Defendant until he can use discovery to
identify “all the other Columbia C.I. staff who
actually touched [his] property.” Id.
Plaintiff has not alleged that any deficiency in training
caused the loss of Plaintiff's property. There is,
accordingly, no factual basis presented in this case to
support a claim against the Secretary. It is well established
that a prison official cannot be named as a Defendant in a
civil rights case merely because he or she has supervisory
authority over others. Keating v. City of Miami, 598
F.3d 753, 762 (11th Cir. 2010). The doctrine of respondeat
superior or vicarious liability does not provide a basis for
recovery under § l983. Harvey v. Harvey, 949
F.2d 1127, 1129 (11th Cir. 1992) (citing Monell v.
Dep't of Soc. Srvcs, 436 U.S. 658, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978)). More must be presented to state a claim
against the Secretary as there must be some causal connection
between the Defendant and the injury allegedly sustained.
Swint v. City of Wadley, 51 F.3d 988, 999 (11th Cir.
1995) (citing Rivas and Zatler; Rivas
v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991);
Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir.
1986)). Plaintiff has not alleged a causal connection between
his injury and any action of the Secretary. The claim against
the Secretary should be dismissed.
the Supreme Court has unequivocally held that a state
official's negligent conduct, even though it causes
injury, does not constitute an actionable deprivation under
§ 1983. County of Sacramento v. Lewis, 523 U.S.
833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Daniels v.
Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88
L.Ed.2d 662 (1986). Plaintiff has alleged only that Defendant
Glass did not provide a property slip to him. That is not a
sufficient basis for a claim.
degree Plaintiff could assert that Defendant Glass
is responsible for the loss of his property, that claim is
also insufficient. If personal property of an inmate was
taken and not returned because of a defendant's
negligence, there can be no finding of an unconstitutional
deprivation of property. Daniels v. Williams, 474
U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Even if
Plaintiff contends the loss of his property was done
intentionally, his claim is still foreclosed. Parratt v.
Taylor, 451 U.S. 527, 541-44, 101 S.Ct. 1908, 1916-17,
68 L.Ed.2d 420 (1981), “and its progeny hold that a
deprivation of liberty or property is not cognizable under
Section 1983 when a state's post-deprivation remedies are
adequate to protect a victim's procedural due process
rights.” Wood v. Ostrander, 879 F.2d 583,
588 (9th Cir. 1989) (citing Hudson v. Palmer, 468
U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)).
[A]n unauthorized intentional deprivation of property by a
state employee does not constitute a violation of the
procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful postdeprivation remedy
for the loss is available. For intentional, as for negligent
deprivations of property by state employees, the state's
action is not complete until and unless it provides or
refuses to provide a suitable postdeprivation remedy.
Hudson, 468 U.S. at 533, 104 S.Ct. at 3204 (footnote
omitted). Postdeprivation procedures satisfy due process for
unauthorized deprivations by state actors, whether
intentional or negligent, because the state cannot know in
advance of the deprivation and therefore cannot provide
predeprivation process. Id., at 534, 104 S.Ct. at
State of Florida has waived its sovereign immunity in tort
actions for the negligent or wrongful acts of employees
causing injury or loss of property. Fla. Stat. §
768.28(1). The existence of § 768.28 provides Plaintiff
with a meaningful, post-deprivation remedy to challenge the
loss of property. In addition, the Department of
Corrections' Administrative Rules permit an inmate to
request compensation or replacement of missing property. Fla.
Admin. Code R. 33-602.201(14). There is no indication that
Florida's statutory scheme or the administrative process
is not adequate. Thus, Plaintiff's claim concerning the
deprivation of his property is not cognizable in this §
1983 action and his claim against Defendant Glass should be
it is ORDERED that the original Report and
Recommendation, ECF No. 7, is VACATED.
respectfully RECOMMENDED that
Plaintiff's complaint, ECF No. 1, be
DISMISSED for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. §
1915(e)(2), and the Order adopting this Report and
Recommendation should direct the Clerk of Court to note on