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 IN T H E U N IT E D STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

BYRON J. EVERIDGE,

Plaintiff,

vs. Case No. 3:10cv466/MCR/CJK

SERGEANT CANNON, et al., 

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, has filed a civil rights

complaint under 42 U.S.C. § 1983. (Doc. 1). Upon review of the complaint, the

court concludes that plaintiff has not presented and cannot present an actionable

claim under § 1983, and that this case should be dismissed.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is an inmate of the Florida penal system currently confined at Santa

Rosa Correctional Institution (“Santa Rosa CI”). Plaintiff sues four prison officials

of the Florida Department of Corrections (“FDOC”): Sergeant Cannon, a property

sergeant at Taylor Correctional Institution (“Taylor CI”); Sergeant Johnson, a

property sergeant at Santa Rosa CI; R. Tifft, Warden of Santa Rosa CI; and Walter

McNeil, former Secretary of the FDOC. (Doc. 1, p. 2). Plaintiff alleges that he was

transferred from Taylor CI to Santa Rosa CI on May 17, 2010, and that he has not

received various items of his personal property. (Id., pp. 5-6). As relief, plaintiff

seeks return of his property. (Id., p. 7.). 

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DISCUSSION

Plaintiff is proceeding in forma pauperis under 28 U.S.C. § 1915. (Doc. 6). 

Section 1915 requires the court to dismiss the case if satisfied that the action is “(i)

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.” 28

U.S.C. § 1915(e)(2)(B). The court must read plaintiff’s pro se allegations in a liberal

fashion. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). 

Dismissals for failure to state a claim are governed by the same standard as Federal

Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1485 (11 Cir. th

1997). The court accepts all factual allegations in the complaint astrue and evaluates

all reasonable inferences derived from those facts in the light most favorable to the

plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11 Cir. 1994). The court

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may dismiss the complaint if the facts as pleaded do not state a claim to relief that is

plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,

1968-69, 1974, 167 L. Ed. 2d 929 (2007) (retiring the negatively-glossed “no set of

facts” language previously used to describe the motion to dismiss standard and

determining that because plaintiffs had “not nudged their claims across the line from

conceivable to plausible, their complaint must be dismissed” for failure to state a

claim). The court may also dismiss the complaint under Rule 12(b)(6), if the

complaint’s factual allegations – on their face – show that an affirmative defense bars

recovery on plaintiff’s claim. Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1022 (11

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Cir. 2001); see also Jones v. Bock, 549 U.S. 199, 215, 127 S. Ct. 910, 920-21, 166

L. Ed. 2d 798 (2007) (reiterating that principle). 

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In order to prevail in a civil rights action under § 1983, a plaintiff must

establish that a person acting under color of state law deprived him of a right,

privilege, or immunity secured by the Constitution or laws of the United States. 

Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11 Cir. 2001). The plaintiff th

here does not claim that the defendants’ conduct deprived him of a constitutionally

protected right. Plaintiff merely complains that he did not receive all of his property,

and that his grievances to the defendants concerning the “missing property” were

either ignored, denied, or rejected on procedural grounds. To the extent plaintiff

suggests the defendants’ failure to return his property constitutes a deprivation of

property without due process, his allegations fail to state a plausible § 1983 claim. 

The Supreme Court has held that the negligent deprivation of property does

not amount to a constitutional violation actionable under § 1983. Daniels v.

Williams, 474 U.S. 327, 330, 333, 106 S. Ct. 662, 664, 666, 88 L. Ed. 2d 662 (1986)

(holding that the Due Process Clause is not implicated by a state official’s negligent

act causing unintended loss of or injury to life, liberty, or property). The Supreme

Court has further held that “an unauthorized intentional deprivation of property by

a state employee does not constitute a violation of the procedural requirements of the

Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation

remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct.

3194, 82 L. Ed. 2d 393 (1984). The State of Florida provides plaintiff with an

adequate post-deprivation remedy for the loss of his property. Prisoners may file a

tort claim action in state court in order to recover damages for property losses. See

Fla. Stat. § 768.28 (2011). Because plaintiff has access to an adequate postdeprivation remedy, no procedural due process violation has occurred. See Case v.

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Eslinger, 555 F.3d 1317, 1331 (11 Cir. 2009) (“We have recognized that ‘a civil

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cause of action for wrongful conversion of personal property’ under state law is a

sufficient postdeprivation remedy when it extends to unauthorized seizures of

personal property by state officers.”) (quoting Lindsey v. Storey, 936 F.2d 554, 561

(11 Cir. 1991); see also Taylor v. McSwain, 335 F. App’x 32, 34 (11 Cir. 2009)

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(“[A] state employee’s unauthorized intentional deprivation of an inmate’s property

does not violate due process under the Fourteenth Amendment if a meaningful

postdeprivation remedy for the lossis available.”) (citing Hudson, 468 U.S. at 533)). 

Plaintiff’s allegations do not give rise to a plausible basis for relief under § 1983. 

Amendment will not enable plaintiff to state a viable federal claim. Thus, dismissal

is appropriate. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11 Cir. 2001) (holding th

that although a party may ordinarily amend his pleading once as a matter of course,

the court need not allow amendment if amendment would be futile). 

Having dismissed plaintiff’sfederal claims,the court should decline to exercise

supplemental jurisdiction over any state law claims plaintiff seeks to pursue. 28

U.S.C. § 1367(c)(3) (providing that the district court may decline to exercise

supplemental jurisdiction over pendent state law claims if the court has dismissed all

claims over which it has original jurisdiction); United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966); Raney v. Allstate

Ins. Co., 370 F.3d 1086, 1089 (11 Cir. 2004) (“We have encouraged district courts th

to dismiss any remaining state claims when, as here, the federal claims have been

dismissed prior to trial.”). 

Accordingly, it is respectfully RECOMMENDED:

1. That plaintiff’s federal claims be DISMISSED WITH PREJUDICE under

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28 U.S.C. § 1915(e)(2)(B)(ii), for plaintiff’s failure to state a claim upon which relief

may be granted.

2. That to the extent the complaint raises state law claims, such claims be

DISMISSED WITHOUT PREJUDICE to plaintiff’s re-filing themin the appropriate

state court.

3. That the clerk be directed to close the file.

At Pensacola, Florida this 1st day of November, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court's internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:10cv466/MCR/CJK

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