Elder v. Shook

• Court: District Court, W.D. Arkansas
• Decided: February 26, 2024
• Docket: 2:24-cv-02013
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION

CHRISTOPHER BENNETT ELDER PLAINTIFF

v. Civil No. 2:24-CV-02013-SOH-MEF

CAPTAIN JACOB SHOOK, SERGEANT JUSTICE CATO, SERGEANT JOHN GRIFFITH, CORRECTIONAL OFFICER FISHER, and OFFICER MARCUS (All of Johnson County Detention Center) DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION This is a civil rights action filed under 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation. The case is before the Court for preservice screening pursuant to 28 U.S.C. § 1915A.1 0F Under § 1915A, the Court is required to screen any complaint in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). I. BACKGROUND Plaintiff filed his Complaint on January 24, 2024. (ECF No. 1). Plaintiff alleges that on June 10, 2022, he was sentenced and incarcerated in the Johnson County Detention Center (“JCDC”) awaiting transfer to the ADC. Upon intake at JCDC, Defendant Marcus filled out an intake form which indicated all personal property accompanying Plaintiff. (Id. at 4). In September 2022, Plaintiff’s mother came to pick up his personal property, and Defendant Fisher told Plaintiff

1 Enacted as part of the Prison Litigation Reform Act (“PLRA”). that they could not find his property. (Id. at 4-5). Plaintiff indicates that his personal property included a deer stand, clothing, and Ariat work boots he had received from his father, who has since passed away. (Id. at 5, 9). Plaintiff indicates the sentimental value of the boots are incalculable. (Id.).

On the form, Plaintiff checked all boxes concerning the capacity in which he is suing Defendants. (Id. at 5). The Court will interpret this as proceeding against them in both their official and individual capacities. Plaintiff seeks compensatory damages for his lost or stolen property. (Id. at 9). II. LEGAL STANDARD Under § 1915A, the Court is obliged to screen the case prior to service of process being issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are frivolous, malicious, or fail to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams,

490 U.S. 319, 325 (1989). An action is malicious when the allegations are known to be false, or it is undertaken for the purpose of harassing or disparaging the named defendants rather than to vindicate a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 464 (E.D.N.C. 1987); In re Tyler, 839 F.2d 1290, 1293-94 (8th Cir. 1988). A claim fails to state a claim upon which relief may be granted if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “In evaluating whether a pro se plaintiff has asserted sufficient facts to state a claim, we hold ‘a pro se complaint, however inartfully pleaded . . . to less stringent standards than formal pleadings drafted by lawyers.’” Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). This means “that if the essence of an allegation is discernable, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson’s claim to be considered within the proper legal framework.” Jackson, 747 F.3d at 544 (cleaned up). However, the complaint must still allege specific facts sufficient to support a claim. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).

III. ANALYSIS Plaintiff fails to state a plausible constitutional claim based on his personal property loss. See Clark v. Kansas City Mo. Sch. Dist., 375 F.3d 698, 793 (8th Cir. 2004) (no cause of action for the taking of personal property as long as the state provides an adequate post-deprivation remedy). Even if the deprivation of his property was intentional, there is no Due Process violation when the state has provided Plaintiff with adequate post-deprivation remedies. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional deprivation of property does not violate due process when meaningful post-deprivation remedy is available). Arkansas provides the post-deprivation remedy of conversion for the recovery of personal property. See Elliot v. Hurst, 817 S.W.2d 877, 880

(1991) (cause of action for conversion lies where distinct act of dominion is exerted over property in denial of owner’s right). Accordingly, because Plaintiff could seek redress in Arkansas state courts to recover his lost property, he has no plausible claim pursuant to § 1983 in this regard. IV. CONCLUSION For these reasons, it is recommended that: (1) the case be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted; (2) Plaintiff/Petitioner is warned that, in the future, this dismissal may be counted as a strike for purposes of 28 U.S.C. § 1915(g), and thus the Clerk is directed to place a § 1915(g) strike flag on the case for future judicial consideration; and (3) the Court certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this dismissal would not be taken in good faith. The parties have fourteen (14) days from receipt of the Report and Recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. DATED this 26th day of February 2024. /s/ HON. MARK E. FORD UNITED STATES MAGISTRATE JUDGE