USCA1 Opinion
May 7, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1805
ERVIN TRIPLETT,
Plaintiff, Appellant,
v.
LARRY E. DUBOIS AND PETER PEPE,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Selya, Cyr and Lynch,
Circuit Judges.
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Ervin Triplett on brief pro se.
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Nancy Ankers White, Special Assistant Attorney General, and
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Thomas E. Abruzzese, Counsel, Department of Correction, on brief for
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appellees.
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Per Curiam. We have reviewed the parties' briefs and
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the record on appeal. We affirm essentially for the reasons
stated in the district court's memorandum, dated June 29,
1995. We add only the following.
Even were we to assume, as appellant Ervin Triplett
argues, that he alleged, and the district court should have
considered, facts in his own motion for partial summary
judgment that specified the defendants' personal role in the
alleged deprivation of his rights, he would not be entitled
to relief in this 1983 action, based on those "facts." He
claims that he was unlawfully deprived of his television set
without being afforded predeprivation due process, pursuant
to a policy announced by defendant Pepe and condoned by
defendant Dubois, that authorizes the removal of a television
set from the cell of an inmate who is on "awaiting action"
status for receipt of a disciplinary report. Triplett
contends that this policy is unlawful as, according to
Triplett, there is no statutory authorization for it. Even
assuming, arguendo, that Triplett is correct in this
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contention,1 he, nonetheless, would not prevail. "[A]n
1
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1But see Mass. Gen. L. ch. 124, 1(q) (authorizing the
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commissioner of correction to make and promulgate necessary
rules and regulations incident to the exercise of his powers
and the performance of his duties including rules and
regulations regarding discipline); 103 CMR 430.21(a) (giving
the superintendent or his designee authority to place an
inmate under investigation for a possible disciplinary
offense on awaiting action status, which may include a more
restrictive confinement); and 103 CMR 421.20(5) (providing
that, in a segregated unit, a cell may include a television
but it shall be subject to procedures for its removal and
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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." Hudson v. Palmer, 468 U.S. 517, 533 (1984);
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see also Watson v. Caton, 984 F.2d 537, 541 (1st Cir. 1993)
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(per curiam) (holding that there is no legal basis for a
1983 action where the allegation is that the action was a
deviation from, and not a reflection of, an established state
procedure). Triplett makes no allegation here that
Massachusetts affords no adequate postdeprivation remedy, and
that ends the matter. See Romero-Barcelo v. Hernandez-
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Agosto, 75 F.3d 23, 33 (1st Cir. 1996) (declining to address
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whether an adequate postdeprivation remedy is available under
state law absent either any allegation or argumentation on
the point by the plaintiff).
Similarly, insofar as Triplett's complaint might be
construed as alleging a violation of substantive due process,
he would not prevail. Triplett does not (and could not
reasonably) contend that an inmate has a constitutional right
to possess a television set in his cell and the fact that the
defendants removed Triplett's television set prior to his
disciplinary hearing for possessing a razor blade in his cell
simply does not rise to the level of "conscience shocking"
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return).
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conduct. See Brown v. Hot, Sexy & Safer Prods., Inc., 68
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F.3d 525, 531 (1st Cir. 1995) (outlining two theories under
which a plaintiff may bring a substantive due process claim -
- demonstration of a deprivation of an identified liberty or
property interest protected by the Fourteenth Amendment or
state's conduct that "shocks the conscience"), cert. denied,
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116 S. Ct. 1044 (1996).
The district court order granting the defendants' motion
to dismiss is
Affirmed.
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