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Birkett v. Tate

United States District Court, W.D. Louisiana, Alexandria Division

January 4, 2018

SHERWIN BIRKETT, Plaintiff
v.
LIEUTENANT TATE, ET AL. Defendants

          DEE D. DRELL JUDGE.

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes United States Magistrate Judge.

         Before the Court is a complaint filed by pro se Plaintiff Sherwin Birkett (“Birkett”) (#21345077) pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics.[1] Birkett is an inmate in the custody of the Bureau of Prisons, incarcerated at the United States Penitentiary in Pollock, Louisiana. Birkett has been granted leave to proceed in forma papueris. (Doc. 8). Birkett complains his constitutional rights were violated by the loss or destruction of his personal property. Birkett names as defendants Lt. Tate, C. Nall, Officer Downey, and Lauren Lacaze.

         This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court.

         I. Background

         Birkett alleges that Lt. Tate instructed officers to enter Birkett's tier for a search. Inmates were ordered to place all personal property in bags, and deposit the bags into laundry bins. (Doc. 1, p. 3). Officers Downey and Lacaze inspected the property outside of the inmates' presence. The inmates' property was returned following inspection. (Doc. 1, p. 3).

         When Birkett received his property, he noticed some legal materials were missing. (Doc. 1, p. 3). Officer Downey informed Birkett that Officer Nall took all of Birkett's legal materials. (Doc. 1, p. 3). Officer Nall indicated the items would be returned immediately. (Doc. 1, p. 3). After weeks passed, Officer Nall informed Birkett that his legal materials could not be located. (Doc. 1, p. 3).

         Birkett seeks monetary damages for the loss of his property and violation of his constitutional rights.

         II. Law and Analysis

         A. Birkett's complaint is subject to screening under §§ 1915(e)(2) and 1915A.

         Birkett is a prisoner who has been allowed to proceed in forma pauperis. Title 28 U.S.C. § 1915A provides for the preliminary screening of lawsuits filed by prisoners seeking redress from an officer or employee of a governmental entity. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998) (per curiam); Rosborough v. Mgmt. and Training Corp., 350 F.3d 459, 461 (5th Cir. 2003) (holding that private prison-management corporations and their employees are state actors under § 1983). Because Birkett is proceeding in forma pauperis, his complaint is also subject to screening under § 1915(e)(2). Both §§ 1915(e)(2)(B) and 1915A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief.

         B. Birkett cannot state a constitutional claim for his lost property.

         Parratt v. Taylor, 451 U.S. 527 (1981) (overruled in part on other grounds) and Hudson v. Palmer, 468 U.S. 517 (1984), known collectively as the “Parratt/Hudson Doctrine, ” provide that a random and unauthorized deprivation of a property or liberty interest does not violate procedural due process if the state furnishes an adequate post-deprivation remedy. See Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991). Although Hudson and Parratt apply on their face to state prison officials, the Fifth Circuit has extended this holding to federal prisoners. Sun v. U.S., 49 F.3d 728 (5th Cir. 1995).

         Birkett cannot show the absence of an adequate post-deprivation remedy. Along with the administrative process of the Federal Bureau of Prisons, 31 U.S.C. § 3724 allows the Attorney General of the United States to settle claims for “personal injury, death, or damage to, or loss of, privately owned property, caused by an investigative or law enforcement officer as defined in section 2680(h) of Title 28 who is employed by the Department of Justice acting within the scope ...


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