1Although Reddick cites to the Fourth and Fourteenth

Amendments, construed liberally the complaint alleges only a

Fourteenth Amendment due process claim arising from the loss and

destruction of his personal property. 

To the extent he alleges an Eighth Amendment claim based on

the conclusory assertion that defendants “bullied” him and caused

him mental and emotional distress, Reddick has failed to allege a

level of harassment sufficient to establish a constitutional

violation. See Toolasprashad v. Wright, No. Civ.A.02-5473, 2005

WL 3536205 at *6 (D.N.J. Dec. 22, 2005)(holding that “[t]he

Eighth Amendment does not constitutionalize a code of civility

nor does it prohibit boorish or ignorant conduct by prison

staff.”); Warren v. Westchester County Jail, 106 F. Supp. 2d 559,

571 (S.D.N.Y. 2000)(claim for mental distress arising from

alleged violations of civil rights not cognizable under Section

1983).

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Dwayne A. Reddick

v. Civil No. 06-cv-008-SM

Hillsborough County Department

of Corrections, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Dwayne A. Reddick brings this civil rights

action, pursuant to 42 U.S.C. § 1983, alleging that defendants

deprived him of personal property in violation of his rights

under the Fourteenth Amendment to the United States Constitution

(document no. 1).1 Named as defendants are the Hillsborough

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County Department of Corrections (“HCDOC”) and two HCDOC

employees: Superintendent James O’Mara and Captain David Dionne.

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. 

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

Case 1:06-cv-00008-SM Document 6 Filed 04/27/06 Page 2 of 6
3

(1st Cir. 1988). I apply this standard in reviewing Reddick’s

complaint.

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 are as follows. Reddick is a

pretrial detainee at the HCDOC. On June 6, 2005, while he was

out of his cell and engaged in a game of chess in the common

area, prison officials ordered inmates to lock-down and return to

their cells. Reddick returned to his cell but left two books in

the common area, one entitled “Race Matters” by Cornell West and

the other entitled “Dutch” by Terri Woods. After the lock-down,

corrections officers informed Reddick that his books were in the

possession of other inmates, who removed the books from the area

where Reddick was playing chess. The corrections officers

instructed Reddick to fill-out a request slip in order to have

the books returned. 

Reddick complied by submitting a request slip in which he

sought the return of his personal property. On June 9, 2005,

Sergeant LaCerte responded to his request and informed him that

the books were deemed contraband. Reddick then filed a

grievance, and on June 11, 2005 Dionne responded, advising him

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4

that the books were deemed contraband and subsequently discarded. 

Reddick filed a second grievance on June 18, 2005, again seeking

the return of his property. Dionne denied his grievance. 

Reddick’s grievance was also denied by O’Mara on or about July 6,

2005. He now brings this action pursuant to Section 1983,

alleging that defendants’ acts and omissions rise to the level of

constitutional deprivations.

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 defendants, acting in their capacity as state employees,

deprived him of personal property, consisting of two books,

without due process of law and in violation of his rights under

the Fourteenth Amendment. 

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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. “[A]n

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). The State of New

Hampshire provides an adequate postdeprivation remedy pursuant to

N.H. Rev. Stat. Ann. §§ 541-B:9 and 541-B:14 (1997) (providing a

post-deprivation means of recouping property loss attributable to

the State). Because state court remedies are available to

Reddick and there is no indication that the State of New

Hampshire has refused him those remedies, I conclude that he has

failed to state a Fourteenth Amendment due process violation

arising from the loss of personal property. Accordingly, I

recommend that the complaint be dismissed in its entirety.

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Conclusion

For the reasons stated above, I recommend that the complaint

be dismissed. 

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

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: April 27, 2006

cc: Dwayne A. Reddick, pro se

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