UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DESMOND CHARLES LAWRENCE,

Plaintiff-Appellant,

v.

No. 97-6429

SWANSON INMATE COMMISSARY

SERVICES, in its official and

individual capacity,

Defendant-Appellee.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Dennis W. Shedd, District Judge.

(CA-97-430-3-19BC)

Submitted: March 31, 1998

Decided: June 4, 1998

Before WIDENER, WILLIAMS, and MOTZ,

Circuit Judges.

_________________________________________________________________

Affirmed in part and vacated and remanded in part by unpublished

per curiam opinion.

_________________________________________________________________

COUNSEL

Desmond Charles Lawrence, Appellant Pro Se.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Desmond Lawrence brought this 42 U.S.C. § 1983 (1984) action

alleging that while he was incarcerated at the Richland County Detention Center the Defendant seized money from his prison account.

Lawrence contended that the taking was authorized and in accordance

with the Defendant's established policies and procedures. Lawrence

claimed that the seizure of his money violated his procedural due process rights. He sought return of the money and compensatory and

punitive damages.

A magistrate judge found that Lawrence had not stated a claim

under § 1983 because he had an adequate postdeprivation remedy

under South Carolina state law. The magistrate judge recommended

that the district court dismiss the action. Lawrence objected, again

stressing that the Defendant took his money pursuant to authorized

policies. The district court accepted the recommendation and entered

judgment for the Defendant. Lawrence timely appealed.

The district court found that Lawrence had failed to state a claim

because he had an adequate remedy at state law to redress his loss.

However, the cases upon which the court relied to reach its decision

apply only when the deprivation of property is random, unauthorized,

and not pursuant to established state procedure. See Hudson v.

Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527,

543-44 (1981). In this case, Lawrence has alleged that the taking was

pursuant to established policies. Thus, the availability of Parratt-type

postdeprivation remedies is irrelevant. See Zinermon v. Burch, 494

U.S. 113, 136-38 (1990) (Parratt and Hudson apply to situations

where it is truly impossible for the state to provide predeprivation

process before a person is unpredictably deprived of his liberty or

property by the unauthorized conduct of a state actor).

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Lawrence does not allege what policy or regulation authorizes the

seizure. It may be that the district court knows that no such policy or

regulation exists. If so, of course, this would provide a basis for dismissal. However, we cannot discern this from the record before us.

Certainly the district court either sua sponte or on Defendant's motion

can order Lawrence to cite and state the precise policy or regulation

on which he relies.

We express no opinion on the merits of the case. We vacate that

portion of the order of the district court that accepts the report of the

magistrate, overrules Lawrence's objections, and dismisses the action,

and remand for application of the correct legal standard and further

factual development of the record, if this is necessary. We affirm the

remainder of the order. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

The motion for appointment of counsel is denied.

AFFIRMED IN PART AND VACATED

AND REMANDED IN PART

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