# FILED July 17, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) FRED E. DEAN , ) Lauderdale County Circuit Court ) No. 4881 Plaintiff

/Appella nt. ) ) VS. ) C.A. No. 02A01-9704-CV-00077 ) DONAL CAMPBELL, et al., ) ) Defend ants/Appe

llees. )

)

______________________________________________________________________________ Fr om th e C ir cu it Co ur t o f La ud er da le Co un ty a t R ip le y. Honorable Joseph H. Walker, Judge

Fred E. Dean , Pro Se

John Knox Wa

lkup , Attorney Gene

ral and Reporter, Stephanie R. Reevers , Assistant Attorney Gene ral Attorney s for Def

endants/ Appellee s.
OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J. CRAWF ORD, P.J., W.S. : (Concur s) LILLARD, J. : (Concur s)1 Donal Campbell is the commissioner of the TDOC, Robert Conley is identified in the

complain t as ward en at WTHSF

and Corpo

ral L ane and

Office r Maxwell id

entified as prope rty room officers at WTHSF.

2 Th is ca se wa s s ub se qu en tl y ov er ru le d b y Dan iel s v. Will iams , 474 U.S. 327 (1986), wherein the court stated:

Fred E. Dean, an inmate in custody of the Tennessee Department of Corre ctions (TDOC) sued Dona

l Campbell , Robert Conley, Corporal Lane and Offic er Maxwell for monetary damages in a “Complaint for Violation of Civil Rights Under 42 U.S.C. § 1983.” 1 The complaint alleges that when Mr. Dean was transferred from one correction facility

to another, severalitems of persona l p roperty we

re missing, to-wit: sweat pants and shirt, plastic bowl, some cosmetics and a prayer rug. He allege s that aft

er writing Commissi oner Camp bell, he was n otifi ed prayer ru gs must be no larger than 3 x 5 feet; with a fire retardant label and nonskid back. The complaint alleges that prayer rugs are not made with a nonskid back or fire retardant label. Thus , he al leges that he has been d epriv ed of a p rayer rug.

Defend ants filed a motion to dismiss the complaint pursuant to Rule 12.02 T.R.C.P. for failure to state a claim upon which relief can be granted and for lack

of jurisdiction. The motion
was granted and Plain

tiff appe als. I

n conside ring a R ule 12.02 (6) motion

to dismiss, we are required to take the

allega tions of the

complain t as true a nd to const

rue the a llegat io ns liberally in favor of the plaintiff. Pemberton v. American Distilled Spirits Co. , 66 4 S .W .2d 690 , 69 1 (T enn . 19 84) . It admits the

truth of a ll relevant and material affirmance contained in the complaint but asserts that such facts do

not constitute a cause of action. Humphries v. West End Terrace, Inc. , 795 S.W.2d 128 (Tenn. App. 1990). Mr. Dean alleges that he was depr ived of hi s proper

ty without due

process in violation of the Fourteenth Amendment and that his prayer r

ug was confiscated because it did not meet the Dep artment ’s standards in violation of the First Amendment and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, et seq .

No state sha

ll deprive any

person of propert y w ithout due

processof law. U .S. Const. amend. XIV, § 1. I

n Brooks v. Dutton , 751 F.2d 197 (6th Cir. 1985), an inm ate at the Tennessee StatePrison sued to procure the return o f proper ty which had been removed from his cell while he
was in the hosp ital. In affirming the district court’s dismissal, the 6th Circuit noted thatthe Supre me Courtheld

in Parratt v. Taylor , 451 U.S. 527, 543, (1981), 2 that a pr isoner’ s loss of prope

rty due toIn Parratt v. Taylor , 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420

(1981), a state prisoner sued under 42 U.S.C. § 1983, claiming that prison officials had negligently

deprived him of his property without due process of law. After deciding that § 1983 contains no independent state-of -mind requirement, we concluded that although petitioner had been “de prived” of property

within the meaning of the Due Process Clause of the F ourteenth Amendment, the State’s postdepr ivation tor

t remedy provided the proc ess that w as due. Pe titioner’ s claim in this case, which also rests on an alleged Four teenth Amendment “deprivation” caused by the

negligent conduct of a prison offic ial, leads us to reconsider our statement in Parratt

that “the alleged loss, even though neg ligently ca

used, amounted to a deprivation.” Id ., at 536-537, 101 S.Ct., at 1913. We conclude that the Due Process Clause is simply not implicated by a negligent

act of an of fi ci al ca us in g u ni nt en de d l os s o f o r i nj ur y to li fe , l ib er ty, or pr op er ty. Daniels , 474 U.S. at 328. the negligence of a state

employee wa s not a violation of due process if the state afforded a means to resolve the alleged loss. The court noted that Parratt wa s f ol lo we d b y Vicory v. Walton , 721 F.2d 1062 (6th Cir. 1983), cert. den. , 469 U.S. 834 (1984), which held that a § 1983 action does not lie if state law provides an “immed

iate corrective proc ess in its c ourts,” b y which the p laintiff could
recover his property. Vicor

y , 721 F.2d at 1064. The court held that the State of Tennessee has providedadequa

te procedures t

o ass ure the r

eturn of items either neg ligently or intenti onally converted, citing T.C.A. § 9-8-207, [now T.C.A. § 9-8-307(a)(1)(F) ], and in the absence of res ort to state remedies, a federal court may

not assert jurisdiction. T.C.A. § 9-8-307(a)(1)(F) provides that the commission or eac h commissioner sitting individually has exclusive jurisdiction to determine al l m on et ar y cl ai ms ag ai ns t t he st at e for ne gl ig en t c ar e, cu st od y or co nt ro l o f p er so na l p ro pe rt y.

Congre ss shall make

no law pr

ohibiti n g the fr

ee exerc ise of re

ligion. U .S. Const. amend. I. B y r

eason of the due pr

ocess cl ause

of the Fo urteent h Amendmen

t, the pro visions of

this amendment

which fo rbid cong ressiona l legisla tion with r

espect t o the esta blishment o f relig ion is equally applicable to state and local governmental bodies. Wiley v. Franklin , 468 F.Supp. 133, 143 (E.D. Tenn.1979), modified on other grounds , 474 F.Supp. 525 (E.D. Tenn. 1979); 497 F.Supp. 390 (E.D. Te nn. 1980) ; Cantwell v. Connectic ut , 310 U.S. 296, 303 (1940).

Lawful incarc erati on bri ngs about the necessary withdrawals or

limitations of many privileges and rights. A prison inmate retains those First Amendment rights that are not inconsistent withhis status as a prisoner or with the legitimate penological objectives of the cor rections sys tem. Challenges to restri ctions on those rights must be analy zed in terms of the legitimate policies and3 (a) In general. Government shall not substantially burden a person’s exercise of religio n even if

the burde

n results f rom a rule

of general ap

plicability, except asprovided in subsection (b). (b) Exception. Governm ent may substantia

lly burden a p erson’sexercise of relig ion only if it demonstrates that application of the burden to the person -- (1) is in furtherance of a compelling g overnmental interest; and (2) is the least re strictive

means of further ing that compelling gove

rnmenta l interes t. goals of the penal sy stem. Pell v. Procunier , 417 U.S. 817(1974).

In McClaflin v. Peace , 739 F.Supp. 537 (D. Or. 1990), an inmate brought a § 1983 action alleging that the c orrect ional institution dep

rived him a

nd restr icted his r ights to p ractice his religionby not allowing him, among other things, a rosary
. The cour t n oted that the rosary

is not essential to the practice of the inmate’s religion of Catholicism. I n the present case, Mr. Dean’ s complaint does not allege that a pray er rug is essential or a central ten et to the p ractice of his religion.

Neither

a state n or its off

icials acting

in their of

ficial c apacitie s are “p ersons”under § 1983. Will

v. Michigan Dep’t of State Police , 491 U.S. 58 (1989). There su it was filed in state court against the Michigan Department of State Police and its director. Subsequent to review by the Courtof Appeals and the Supreme Court of Michigan, the U.S. Supreme Court held that neither a state nor its offic ials acting in the

ir offic ial capa

cities ar e “pers ons” under § 1983. The state court judge ruled for petitioner, finding tha t both res p ondents w ere “pe rsons” under § 198 3. The sta te court of appeals vacated the jud gment against the department, holding that a state is not a person under § 1983 and remanded for a determination of the direct or’s poss ible immunity. The state supreme court affirmed in part and reverse d in part, agreeing that the state is not

a person under § 1983, but holding that a state official acting in his or her off icial capaci

ty also is not such a person. That judgment was affirmed. The defendants in the present case were clea

rly sued in their offic ial capaci ties.

Mr. Dean contends that theconfiscation of the prayer rug is violative of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 200 0bb-1. 3 Ho wever, the Supreme Court of the United States recently he

ld the RFRA to be unconstitutional. City of Boe rne v. Flores , No. 95-2074, 1997 WL 345322, (U.S. June 25, 1997). There the Court said:It is for Cong

ress in the first instance to “determin[e] whether and what legislation is need ed to secure the guarantees of the Fourtee nth Amendmen

t,” and it s conclus ions are enti t led to much deferenc e. K

atzenbach v. Morgan , 384 U.S., at 651, 86 S.Ct., at 1723-1724. Congress’ discretion is not unlimited, however, and the courts retain the power, as they have sinc e Marbury v. Madison , to determine if

Congress has exceed its authority under the Constitution. Broad as the power

of Congress is under the Enforcement Clause of the Fo ur teenth Amendment, RFRA contradicts vital principles necessar y to maintain separation of powers and the federa l balance. The judgment of the Court of Appeals sustaining the A ct’ s constitutionality is reversed. City of Boe

rne , 1997 WL 345322, at *16.

For the foregoing reasons, we believe the trial court

was correct in granting the defenda nts’ motion

to dismiss. T

he judg ment of the

trial cou rt is aff irmed an d the cost s of this ap pe al ar e t ax ed to Mr . D ea n, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

____________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LI LL ARD, J. (Conc

urs)