United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge.
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. 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
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.
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).
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).
seeks monetary damages for the loss of his property and
violation of his constitutional rights.
Law and Analysis
Birkett's complaint is subject to screening under
§§ 1915(e)(2) and 1915A.
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.
Birkett cannot state a constitutional claim for his lost
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).
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 ...