JACK J. NEARY, NO. 059129, PLAINTIFF-APPELLANT,
v.
R.L. DUGGER, ET AL., DEFENDANTS-APPELLEES
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The court held that a pro se prisoner's § 1983 complaint alleging seizure of property pursuant to established institutional policy, without a meaningful post-deprivation hearing, sufficiently states a claim under Parratt v. Taylor.
A pro se inmate sued correction officers under § 1983, alleging they seized and disposed of his personal property during a "Mass Security Search for W…
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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.
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Wright v. Lanson Newsome, 795 F.2d 964 (11th Cir. 1986)…ed conclusions of law but has alleged facts that, if true, would support the finding that the deprivation in this case was the result of established state procedure. Diaz and Mincey were ordered to search the cell by a superior. See Neary v. Dugger, 766 F. 2d 456, 457 (11th Cir.1985) (allegation of confiscation during search conducted pursuant to established state procedure states claim of deprivation without due process). According to Wright’s allegations, confiscations of legal materials at GSP have taken…
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CAY v. W.J. Estelle, Jr., 789 F.2d 318 (5th Cir. 1986)…. Fayette Cty, 599 F. 2d 573 (3rd Cir. 1979) (same); Brooks v. Seiter, 779 F. 2d 1177 (6th Cir.1985) (dismissal appropriate only if it appears beyond doubt that plaintiff can prove no set of facts which would entitle him to relief); Neary v. Dugger, 766 F. 2d 456 (11th Cir. 1985) (same); Green v. Black, 755 F. 2d 687 (8th [*326] Cir.1985) (same); Anderson v. Coughlin, 700 F. 2d 37 (2nd Cir.1983) (dismissal appropriate if there is little chance of success on the merits in light of various defenses which may b…
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Thomas v. Evans, 880 F.2d 1235 (11th Cir. 1989)…t was not addressed on the merits. . Thomas also alleges that the confiscation occurred pursuant to an established state procedure. These allegations may suffice to state a claim for deprivation of property without due process. See Neary v. Dugger, 766 F. 2d 456, 457 (11th Cir.1985). . The record is unclear, but the apparent purpose of the hearing was to consider the motion for a preliminary injunction. . The record indicates that the hearing was scheduled by order dated March 9, 1987. Thomas filed the mo…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Conley v. Gibson, 355 U.S. 41 (U.S. 1957)
- Haines v. Kerner, 404 U.S. 519 (U.S. 1972)
- Parratt v. Taylor, 451 U.S. 527 (U.S. 1981)
- Green v. The City OF Montezuma, 650 F.2d 648 (5th Cir. 1981)