UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Dwayne A. Reddick

v. Civil No. 05-cv-255-PB

Marguerite L. Wageling, et al.

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 defendants illegally seized and forfeited his

personal property in violation of his rights under the Eighth and

Fourteenth Amendments of the United States Constitution and New

Hampshire state law (document no. 1). Seeking monetary relief,

he brings this action against Marguerite L. Wageling, Assistant

County Attorney for Hillsborough County, and the Hillsborough

County Attorneys’ Office. 

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.

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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

Wageling, 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 the actions taken

by Wageling and the Hillsborough County Attorneys’ Office,

Reddick allegedly has suffered mental and emotional distress. He

claims that defendants’ actions violate his rights under the

Eighth and Fourteenth Amendments and New Hampshire state law.

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 in violation of his rights under the

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1Although characterized as Eighth and Fourteenth Amendment

violations, liberally construed Reddick’s claims appear to arise

solely under the Due Process Clause of the Fourteenth Amendment.

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Fourteenth Amendment.1 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. 

Section 1983 is not a remedy for addressing the taking of

property if a postdeprivation remedy is available. Parratt v.

Taylor, 451 U.S. 527, 543-44 (1981), overruled on other grounds

by Daniels v. Williams, 474 U.S. 327 (1986). This is true even

if the deprivation is intentional. Hudson v. Palmer, 468 U.S.

517, 533 (1984)(“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.”). 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 Brickner

v. Voinovich, 977 F.2d 235, 237 (6th Cir. 1992)(citing Vicory v.

Walton, 721 F.2d 1062, 1066 (6th Cir. 1983)).

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2To the extent Reddick seeks relief against a federal

defendant, he may seek return of his property pursuant to Rule

41(g) of the Federal Rules of Criminal Procedure (providing that

“[a] person aggrieved by an unlawful search and seizure of

property or by the deprivation of property may move the

property’s return.”). 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 States v. Rowzer,

201 F.R.D. 516, 518 (D. Kan. 2001). 

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Reddick has not alleged that New Hampshire’s judicial

remedies are inadequate or fail to provide him 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. Absent an

allegation that state law postdeprivation remedies are

inadequate, the taking of Reddick’s property does not violate due

process. 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.2

II. State Law Claims

The complaint further alleges that defendants illegally

seized Reddick’s property and turned it over to the Department of

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3Subparagraphs II (a)-(c)(1)-(5) provide:

II. The department of justice may administratively forfeit

property seized under paragraph I of this section as follows:

(a) The department of justice shall provide a notice of intent to

forfeit property administratively by publication for 3

consecutive weeks in a local newspaper of general circulation

where the property was seized.

(b) In addition, to the extent practicable, the department of

justice shall provide notice by certified mail return receipt

addressee only requested, of intent to forfeit the property

administratively to all persons having a recorded interest or

claiming an equitable interest in the property seized.

(c) Notice by publication and by mail shall include:

 (1) A description of the property;

 (2) Its appraised value;

 (3) The date and place of seizure;

 (4) The violation of law alleged against the subject property;

 (5) Instructions for filing a claim and posting bond or filing 

 a petition for remission or mitigation; . . .

N.H. Rev. Stat. Ann. 318-B-17-d, II(a)-(c)(1)-(5).

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Justice in violation of the procedures set forth in N.H. Rev.

Stat. Ann. 318-B:17-(d)(II)(a)-(b), (c)(1)-(5).3 Because I have

recommended dismissal of Reddick’s federal claims, I also

recommend dismissal of his supplemental state law claims. See

Belini v. Washington Mut. Bank, FA, 412 F.3d 17, 23 (1st Cir.

2005)(early dismissal of all federal claims usually will lead to

dismissal of all supplemental state law claims); Velazquez-Rivera

v. Danzig, 234 F.3d 790, 795 (1st Cir. 2000)(dismissal of pendent

claims where federal claims were dismissed). 

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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: July 29, 2005

cc: Dwayne A. Reddick, pro se

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