Cookish v. Hillsborough County

• Court: District Court, D. New Hampshire
• Decided: October 8, 1996
• Docket: CV-95-518-M
• Status: Published

Opinion

Cookish v . Hillsborough County CV-95-518-M 10/08/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dennis R. Cookish, et a l .

v. Civil N o . 95-518-M Hillsborough County, et a l .

O R D E R

Dennis Cookish and six other inmates bring a civil rights

suit challenging the conditions of confinement at the

Hillsborough County jail during pretrial detention. The court

undertook a preliminary review of the plaintiffs' complaint

pursuant to 28 U.S.C.A. § 1915(d), and the plaintiffs object to

the magistrate judge's recommendation to dismiss two claims in

the complaint. Review of a magistrate judge's dispositive

recommendation is de novo, and, having reviewed the report and

recommendation in light of the plaintiffs' objection, the court

modifies it as follows. See 28 U.S.C.A. § 636(b)(1); Fed. R.

Civ. P. 72(b).

The magistrate judge recommends that the plaintiffs' due

process claim for loss of their property be dismissed because an

adequate postdeprivation remedy exists through the state

statutory claims process. See N.H. Rev. Stat. Ann. § 541-B:9, II and V (Supp. 1995). As the plaintiffs point out in their

objection, however, while Chapter 541-B provides remedies within

the waiver of sovereign immunity by the state, it does not apply

to claims against a county, such as those asserted in this suit.

See N.H. Rev. Stat. Ann. § 541-B:1, I (Supp. 1995).

Nevertheless, "[i]n procedural due process claims, the

deprivation by state action of a constitutionally protected

interest in 'life, liberty, or property' is not in itself

unconstitutional; what is unconstitutional is the deprivation of

such an interest without due process of law." Zinermon v . Burch,

494 U.S. 113, 125 (1990). Therefore, "[t]he constitutional

violation actionable under § 1983 is not complete when the

deprivation occurs; it is not complete unless and until the State

fails to provide due process." Id. at 126. When a plaintiff's

due process claim for property loss is based on authorized

government conduct or established procedure, the claim must

include allegations of an unconstitutional deficit in the

predeprivation process provided. See Logan v . Zimmerman Brush

Co., 455 U.S. 4 2 2 , 436-37 (1982). When a due process claim is

based on random or unauthorized governmental conduct, where

predeprivation process is impracticable, due process may be

satisfied by an adequate postdeprivation remedy, and a claim does

2 not exist if a postdeprivation remedy is adequate and available.

See Hudson v . Palmer, 468 U.S. 5 1 7 , 533 (1984). Ordinarily,

state tort remedies are sufficient to provide constitutionally

adequate postdeprivation remedies. See Cronin v . Town of

Amesbury, 81 F.3d 2 5 7 , 260 (1st Cir. 1996); Decker v .

Hillsborough County Attorney's Office, 845 F.2d 1 7 , 21-22 (1st

Cir. 1988).

In the present case, the plaintiffs' allegations pertaining

to loss of their property, which were construed as procedural due

process claims by the magistrate judge, do not include

allegations of what process was lacking or unavailable. As a

constitutional violation does not occur (and therefore a claim

for deprivation of procedural due process does not exist) until

the defendant fails to provide constitutionally required process,

the plaintiffs have failed to state actionable procedural due

process claims. To the extent the plaintiffs intend to state

procedural due process claims for loss of their property in

addition to claims alleging interference with their right of

access to the courts and claims challenging the conditions of

their pretrial detention, their allegations are insufficient.

Therefore, they shall amend their complaint, within thirty days

from the date of this order, to state separate procedural due

3 process claims for loss of property, or those claims shall be

deemed waived.

The plaintiffs also contend that their claims based on

allegations of inadequate notarial services should survive. As

the magistrate judge properly determined, however, notarial

services are ancillary to an inmate's right to access the court,

and to state a claim, the plaintiffs must allege actual injury

caused by inadequate services. See Sowell v . Vose, 941 F.2d 3 2 ,

34 (1st Cir. 1991); see also Keenan v . Hall, 83 F.3d 1083, 1094

(9th Cir. 1996). Because the plaintiffs only express concern

that adverse consequences are "within the realm of possibility,"

they allege no factual basis to support a claim of actual injury

related to inadequate notarial services, and actual injury is

highly unlikely. The magistrate judge properly dismissed the

claim.

CONCLUSION

The report and recommendation (document n o . 24) is hereby

modified to allow the plaintiffs an opportunity to amend their

complaint to adequately state procedural due process claims, if

they can do so consistently with the facts and in good faith, but

is otherwise affirmed. The plaintiffs shall file an amended

4 complaint within thirty days of the date of this order, as

described, or their procedural due process claims for loss of

their property shall be deemed waived. The plaintiffs' objection

(document n o . 26) is granted in part and denied in part.

SO ORDERED.

Steven J. McAuliffe United States District Judge October 8, 1996

cc: James E . Duggan, Esq. Carolyn M . Kirby, Esq.