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Smith v. Inch

United States District Court, N.D. Florida, Tallahassee Division

October 9, 2019

DARRELL SMITH, Plaintiff,
v.
OFFICER GLASS, and MARK S. INCH, Defendants.

          ORDER AND SECOND REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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.

         Thereafter, 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.

         Plaintiff's complaint, ECF No. 1, has now been reviewed[1] 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.[2] 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.

         Plaintiff 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.

         First, 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.

         Additionally, 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.

         To the 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.”[3] 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 3204.

         The 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.[4] 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).[5] 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 dismissed.

         Accordingly, it is ORDERED that the original Report and Recommendation, ECF No. 7, is VACATED.

         RECOMMENDATION

         It is 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. ยง 1915(e)(2), and the Order adopting this Report and Recommendation should direct the Clerk of Court to note on ...


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