UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Dwayne A. Reddick

v. Civil No. 05-cv-254-PB

Sue-Ellen Seabury

REPORT AND RECOMMENDATION

Proceeding pro se and in forma pauperis plaintiff Dwayne A.

Reddick brings this civil rights action pursuant to 42 U.S.C. §

1983, alleging that defendant illegally seized and forfeited his

personal property in violation of his federally protected rights

(document no. 1). Seeking monetary relief, he brings this action

against Sue-Ellen Seabury, Assistant County Attorney for

Hillsborough County. 

The complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

which relief may be granted. See 28 U.S.C. § 1915A; U.S.

District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(2). For the reasons stated below, I recommend that

the complaint be dismissed without prejudice.

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Standard of Review

In reviewing a pro se complaint, this court must construe

the pleading liberally and in favor of the pro se litigant. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this

preliminary stage of review, all factual assertions made by the

plaintiff and inferences reasonably drawn therefrom must be

accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st

Cir. 1996)(stating the “failure to state a claim” standard of

review and explaining that all “well-pleaded factual averments,”

not bald assertions, must be accepted as true). This review

ensures that pro se pleadings are given fair and meaningful

consideration. See Eveland v. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988).

Background

Crediting the factual allegations in the complaint as true,

and construing all reasonable inferences from the pleadings in

Reddick’s favor, the material facts appear to be as follows. 

Reddick is currently incarcerated as a pretrial detainee at the

Hillsborough County Department of Corrections. He alleges that

Seabury, while acting under color of state law, illegally seized

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his personal property amounting to $2,895.00 and turned it over

to the Department of Justice. As a result of defendant’s

actions, he claims to have suffered mental and emotional

distress. He further claims that defendant’s actions rise to the

level of constitutional deprivations under the Eighth and

Fourteenth Amendments.

Discussion

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal law. See 42

U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981);

Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997). In

order to be held liable for a violation under Section 1983, a

defendant’s conduct must have been a cause in fact of the alleged

constitutional deprivation. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 692 (1978); Soto v. Flores, 103 F.3d 1056, 1061-62

(1st Cir. 1997). 

The premise of Reddick’s Section 1983 action is that

defendant, acting in her capacity as a state employee, deprived

him of personal property in violation of his Eighth and

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1Although characterized as Eighth and Fourteenth Amendment

violations, even liberally construed Reddick’s claims appear to

arise solely under the Due Process Clause of the Fourteenth

Amendment.

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Fourteenth Amendment rights1 by illegally seizing his property

and turning it over to the United States Department of Justice.

Even assuming that Reddick possesses a property interest

sufficient to warrant protection under the Due Process Clause, he

fails to state a claim upon which relief may be granted. In a

Section 1983 action claiming the deprivation of a property or

liberty interest without procedural due process of law, a

plaintiff must plead and prove that state remedies for redressing

the wrong are inadequate. See Vicory v. Walton, 721 F.2d 1062,

1066 (6th Cir. 1983). It is well-established 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 postdeprivation remedy for the loss is

available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984); see also

Watson v. Caton, 984 F.2d 537, 541 (1st Cir. 1993) (holding that

there is no legal basis for a Section 1983 action where the

allegation is that the action was derivation from, and not a

reflection of, an established state procedure). 

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Reddick has neither pleaded nor shown that New Hampshire’s

judicial remedies are inadequate or fail to provide a

postdeprivation remedy. See Romero-Barcelo v. Hernandez-Agosto,

75 F.3d 23, 33 (1st Cir. 1996) (declining to address whether an

adequate postdeprivation remedy is available under state law

absent any allegation by the plaintiff). Nor has he alleged that

it would be futile to argue before the New Hampshire courts that

defendants illegally seized his personal property. Accordingly,

I conclude that he has failed to state a claim under Section 1983

with regard to the alleged seizure and forfeiture of his personal

property.

II. Rule 41(g)

Rule 41(g) of the Federal Rules of Criminal Procedure

provides that “[a] person aggrieved by an unlawful search and

seizure of property or by the deprivation of property may move

the property’s return. The motion must be filed in the district

where the property was seized.” This is an equitable remedy,

however, and is only available to a defendant who can show

irreparable harm and an inadequate remedy at law. See United

State v. Akers, 201 F.R.D. 516, 518 (D. Kan. May 14, 2001). 

Although Rule 41(g) normally concerns property seized by federal

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officials, in some circumstances it can be used to petition

federal authorities for the return of property seized by the

state. “These circumstances include where the United States

actually possesses the property or constructively possesses the

property by: (1) using the property as evidence in the federal

prosecution; or (2) where the federal government directed state

officials to seize the property in the first place.” See United

States v. Story, 170 F. Supp. 2d 863, 866 (D. Minn. 2001)(citing

Clymore v. United States, 164 F.3d 569, 571 (10th Cir. 1999).

Reddick’s cursory allegations, without more, are insufficient to

establish the extensive federal possession or control necessary 

to make Rule 41(g) the appropriate vehicle by which to recover

any state-forfeited property. Id.

Conclusion

For the reasons stated above, I recommend that the complaint

be dismissed without prejudice to refiling under Rule 41(g). 

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

purposes to be the claims raised in the complaint. If the

plaintiff disagrees with the identification of the claims herein,

plaintiff must do so by filing an objection within ten (10) days

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of receipt of this report and recommendation, or by properly

moving to amend the complaint. 

Any further objections to this report and recommendation

must be filed within ten (10) days of receipt of this notice. 

Failure to file objections within the specified time waives the

right to appeal the district court’s order. See 28 U.S.C. §

636(b)(1); Unauthorized Practice of Law Committee v. Gordon, 979

F.2d 11, 13-14 (1st Cir. 1992); United States v. Valencia-Copete,

792 F.2d 4, 6 (1st Cir. 1986).

________________________________

James R. Muirhead

United States Magistrate Judge

Date: July 26, 2005

cc: Dwayne A. Reddick, pro se

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