MICHAEL T. PARKER, Magistrate Judge.
This matter is before the Court on the [31] Motion for Summary Judgment by defendants Christopher Epps, Ron King, Johnnie Denmark, Latisha Johnson, Milton Martin, Hubert Davis, and Marcus Powe. Having reviewed the submissions of the parties, the record in this cause of action, and the applicable law, and being fully advised in the premises, the undersigned recommends that Defendants' motion [31] be
Plaintiff Willie Marzette Brown filed his civil rights Complaint [1] pursuant to 42 U.S.C. § 1983. At the time Plaintiff's claims arose, he was incarcerated at the South Mississippi Correctional Institution ("SMCI") as a post-conviction inmate. According to his most recent correspondence, Plaintiff is currently housed at the Marshall County Correctional Facility. See docket entry [40].
Plaintiff filed his [1] Complaint on August 25, 2010. He filed an [12] Amended Complaint on October 1, 2010. A Spears hearing
Plaintiff's primary claim is that his constitutional rights were violated initially when he was received into SMCI on or about January 7, 2010. According to Plaintiff, Defendant Latisha Johnson, while going through his property to determine the presence of contraband, damaged his personal property, namely a flat screen television set.
Plaintiff has also filed claims against Defendants Christopher Epps (the Commissioner of the Mississippi Department of Corrections); Ron King (SMCI Superintendent); Johnnie Denmark (Warden); Hubert Davis (Deputy Warden); Milton Martin (Correctional Investigation Department); and Lt. Marcus Powe (Correctional Officer in charge of the receiving room the night of January 7, 2010) for their failure to properly investigate and take any action following his complaints to them about the damage to his personal property. These defendants were not present at the time of Defendant Johnson's alleged conduct.
Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
This Court may grant summary judgment only if, viewing the facts in a light most favorable to the plaintiff, the defendants demonstrate that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). If the defendants fail to discharge the burden of showing the absence of a genuine issue concerning any material fact, summary judgment must be denied. John v. State of Louisiana, 757 F.2d 698, 708 (5th Cir. 1985). The existence of an issue of material fact is a question of law that this Court must decide, id. at 712, and in making that decision, it must "draw inferences most favorable to the party opposing the motion, and take care that no party will be improperly deprived of a trial of disputed factual issues." Id. at 708 (quoting United States Steel Corp. v. Darby, 516 F.2d 961, 963 (5th Cir. 1975)).
There must, however, be adequate proof in the record showing a real controversy regarding material facts. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; . . .". Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Thus, "conclusory allegations," Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982), unsubstantiated assertions, Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994), or the presence of a "scintilla of evidence," Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994), is not enough to create a real controversy regarding material facts. In the absence of proof, the Court does not "assume that the nonmoving party could or would prove the necessary facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990)).
Plaintiff's claims are before the Court pursuant to 42 U.S.C. § 1983. However, Section 1983 "neither provides a general remedy for the alleged torts of state officials nor opens the federal courthouse doors to relieve the complaints of all who suffer injury at the hands of the state or its officers." White v. Thomas, 660 F.2d 680, 683 (5th Cir. 1981). Rather, "[i]t affords a remedy only to those who suffer, as a result of state action, deprivation of `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Id. at 683 (quoting 42 U.S.C. § 1983).
It is well-settled that Section 1983 "does not create supervisory or respondeat superior liability." Oliver v. Scott, 276 F.3d 736, 742 & n.6 (5th Cir. 2002). See also Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987) (citations omitted) ("Under § 1983, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability."). "To state a cause of action under § 1983, the plaintiff must allege facts reflecting the defendants' participation in the alleged wrong, specifying the personal involvement of each defendant." Jolly v. Klein, 923 F.Supp. 931, 943 (S.D. Tex. 1996) (citing Murphy v. Kellar, 950 F.2d 290, 292 (5th Cir. 1992)). Thus, supervisory prison officials may be held liable for a Section 1983 violation only if they either were personally involved in the constitutional deprivation or if there is a "sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Thompkins, 828 F.2d at 304. As Defendants Epps, King, Denmark, Davis, Martin, and Powe had no personal involvement in the alleged damage to Plaintiff's television and other personal property, they are not liable to him on this claim.
"Under the Parratt/Hudson doctrine, a state actor's random and unauthorized deprivation of a plaintiff's property does not result in a violation of procedural due process rights if the state provides an adequate postdeprivation remedy." Alexander v. Ieyoub, 62 F.3d 709, 712 (5th Cir. 1995) (footnote omitted). See also Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327, 330-31 (1986). The Parratt/Hudson doctrine applies when: "(1) the deprivation was unpredictable or unforeseeable; (2) postdeprivation process would have been impossible or impotent to counter the state actors' particular conduct; and (3) the conduct was unauthorized in the sense that it was not within the officials' express or implied authority." Smith v. Epps, 326 F. App'x 764, 765 (5th Cir. 2009) (citation omitted). This doctrine applies whether the random unauthorized deprivations of property were negligent or intentional. Hudson, 468 U.S. at 533. However, conduct is not considered "random and unauthorized" for purposes of the Parratt/Hudson doctrine if the state "delegated to [the defendants] the power and authority to effect the very deprivation complained of." Allen v. Thomas, 388 F.3d 147, 149 (5th Cir. 2004) (quoting Zinermon v. Burch, 494 U.S. 113, 138 (1990)).
Plaintiff has not alleged that the deprivations were made in accordince with any policy, practice or custom or were in any other way "authorized." See Smith, 326 F. App'x at 765. Indeed, Plaintiff alleges that the damage to and confiscation of his property violated prison policy.
As stated above, it is well-established that neither negligent nor intentional deprivations of property violate due process where there is an adequate state tort remedy available. Hudson. Moreover, numerous Fifth Circuit cases have upheld dismissal of prisoners' suits for property deprivation because of the availability of state law remedies. See, e.g., Myers v. Klevenhagen, 97 F.3d 91, 94-95 (5th Cir. 1996) (per curiam) (also citing Parratt/Hudson); Murphy v. J.A. Collins, 26 F.3d 541, 543-44 (5th Cir. 1994) (citing Hudson); Marshall v. Norwood, 741 F.2d 761, 763-64 (5th Cir. 1984) (citing Hudson and Parratt).
Mississippi provides post-deprivation remedies for both negligent and intentional conversions of property. See, e.g., Miss. Code Ann. § 11-38-1 et seq. (claim and delivery); Miss. Code Ann. § 11-37-101 et seq. (replevin). See also Wilson v. General Motors Acceptance Corp., 883 So.2d 56, 67 (Miss. 2004) (setting forth elements of conversion). It is Plaintiff's burden to establish that these post-deprivation remedies are not adequate. Myers, 97 F.3d at 94-95 (citations omitted). Plaintiff has failed to allege, much less provide, any evidence that these remedies are not adequate. The Fifth Circuit has held that "Mississippi's post-deprivation remedies for civil IFP litigants satisfy due process." Nickens v. Melton, 38 F.3d 183, 185 (5th Cir. 1994) (footnote omitted). Thus, Plaintiff's remedy for the alleged property deprivation lies not in a Section 1983 action, but in a tort claim under state law.
Plaintiff also emphasizes Defendant Johnson's language at the time of the alleged incident. However, "mere threatening language and gestures of a custodial office[r] do not, even if true, amount to constitutional violations." McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (internal quotations and citation omitted).
Plaintiff's claims against Defendants Epps, King, Denmark, Martin, and Davis involving a failure to investigate his complaints that he informed them about and take favorable action on those complaints also fail.
Furthermore, the fact that Plaintiff's administrative remedy program (ARP) grievance was not resolved in his favor does not amount to a constitutional violation. See Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005) (no federally protected liberty interest in having grievances resolved to prisoner's satisfaction); Jones v. Shabazz, 2007 WL 2873042, at *21 (E.D. Tex. 2007), aff'd, 352 F. App'x 910 (5th Cir. 2009) (stating that a prisoner does not have a constitutional right to a grievance procedure, and has no due process liberty interest right to having his grievance resolved). Even if Plaintiff is claiming that his ARP grievance was not handled properly, he does not state a constitutional violation. See Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986) (holding that the mere failure of a prison official to follow the prison's own regulation or policy does not amount to a constitutional violation); McGowan v. Peel, 2007 WL 710154, at *2 (S.D. Miss. 2007) (same).
Defendants have raised the defense of qualified immunity. However, "if it becomes evident that the plaintiff has failed to state or otherwise to establish a claim, then the defendant is entitled to dismissal on that basis." Wells v. Bonner, 45 F.3d 90, 94 (5th Cir. 1993) (citing Siegert v. Gilley, 500 U.S. 226, 231-33 (1991)). See also Sappington v. Bartee, 195 F.3d 234, 236 (5th Cir. 1999) (quoting Wells). Thus, if the Court finds that the plaintiff's claims are not cognizable as constitutional claims, it need not reach the question whether Defendants are entitled to qualified immunity. Wells, 45 F.3d at 93.
Accordingly, because Plaintiff's allegations fail to establish constitutional claims, the undersigned does not reach the issue of qualified immunity.
Plaintiff's claims do not rise to the level of constitutional violations, and he has failed to show a real controversy supported by material facts. For the reasons stated above, it is the recommendation of the undersigned that Defendants' [31] Motion for Summary Judgment be
In accordance with the rules and 28 U.S.C. § 636(b), any party within fourteen (14) days after being served a copy of this recommendation, may serve and file written objections to the recommendations, with a copy to the judge, the magistrate judge and the opposing party. The District Judge at the time may accept, reject or modify in whole or part, the recommendations of the Magistrate Judge, or may receive further evidence or recommit the matter to this Court with instructions. The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendations contained within this report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the proposed factual findings and legal conclusions accepted by the district court to which the party has not objected. 28 U.S.C. § 636(b)(1); Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
