Jack J. Neary, No. 059129 v. R.L. Dugger

Eleventh Circuit

Jack J. Neary, No. 059129 v. R.L. Dugger

766 F.2d 456, 1985 U.S. App. LEXIS 20623

CourtCourt of Appeals for the Eleventh Circuit

DecidedJuly 22, 1985

Docket83-3711

StatusPublished

Cited by7 cases

This text of 766 F.2d 456 (Jack J. Neary, No. 059129 v. R.L. Dugger) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jack J. Neary, No. 059129 v. R.L. Dugger, 766 F.2d 456, 1985 U.S. App. LEXIS 20623 (11th Cir. 1985).

Pincite

Opinion

GODBOLD, Chief Judge:

Appellant Neary, a Florida inmate, filed this § 1983 action pro se and in forma pauperis, alleging that state correction officers seized and disposed of his personal property after a search for weapons. . The district court dismissed the complaint under 28 U.S.C. § 1915(d). We reverse.

Section 1915(d) authorizes a court to dismiss an in forma pauperis action if it is satisfied that the action is “frivolous.” The district court held this action frivolous because it found that under Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Neary failed to state a claim for which relief could be granted. Under Parratt a taking is not unconstitutional if it is not “a result of some established state procedure,” and if the state provides a “meaningful post deprivation hearing.” Id. at 541, 101 S.Ct. at 1916. The district court found that Florida provides an opportunity for a post-deprivation hearing and that plaintiff had not alleged that the taking was the result of an established state procedure. This was error.

Neary’s complaint alleges that his personal property was seized under the guise of a “Mass Security Search for Weapons.” It further alleges that “under existing policy’s [sic] property seized is to be stored in the institutional property room for thirty (30) days and if not disposed of by the inmate, then the property may be disposed of by the institution pursuant to policy memorandum # 66.” Examining Neary’s pro se complaint under less stringent standards than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972), we find that these allegations sufficiently charged that the taking was the result of an established state procedure. Accordingly, Parratt was improperly relied on. It cannot be said “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Green v. City of Montezuma, 650 F.2d 648, 651 (5th Cir.1981) (Unit B) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)).

REVERSED.

Free access — add to your briefcase to read the full text and ask questions with AI

GODBOLD, Chief Judge:

Appellant Neary, a Florida inmate, filed this § 1983 action pro se and in forma pauperis, alleging that state correction officers seized and disposed of his personal property after a search for weapons. . The district court dismissed the complaint under 28 U.S.C. § 1915(d). We reverse.

Section 1915(d) authorizes a court to dismiss an in forma pauperis action if it is satisfied that the action is “frivolous.” The district court held this action frivolous because it found that under Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Neary failed to state a claim for which relief could be granted. Under Parratt a taking is not unconstitutional if it is not “a result of some established state procedure,” and if the state provides a “meaningful post deprivation hearing.” Id. at 541, 101 S.Ct. at 1916. The district court found that Florida provides an opportunity for a post-deprivation hearing and that plaintiff had not alleged that the taking was the result of an established state procedure. This was error.

Neary’s complaint alleges that his personal property was seized under the guise of a “Mass Security Search for Weapons.” It further alleges that “under existing policy’s [sic] property seized is to be stored in the institutional property room for thirty (30) days and if not disposed of by the inmate, then the property may be disposed of by the institution pursuant to policy memorandum # 66.” Examining Neary’s pro se complaint under less stringent standards than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972), we find that these allegations sufficiently charged that the taking was the result of an established state procedure. Accordingly, Parratt was improperly relied on. It cannot be said “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Green v. City of Montezuma, 650 F.2d 648, 651 (5th Cir.1981) (Unit B) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)).

REVERSED.

Cite This Page — Counsel Stack

Bluebook (online)

766 F.2d 456, 1985 U.S. App. LEXIS 20623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jack-j-neary-no-059129-v-rl-dugger-ca11-1985.

Opinion

Related

Cite This Page — Counsel Stack