UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Peter D’Amelio

v. Civil No. 08-cv-500-JL

Richard M. Gerry, et al.

O R D E R

Peter D’Amelio filed suit in this Court, pursuant to 42

U.S.C. § 1983, complaining that the defendants had violated his

rights by depriving him of his personal property (document nos. 1

& 6). On March 31, 2009, I issued a Report and Recommendation

(document no. 11) recommending dismissal of the complaint on the

grounds that D’Amelio’s action, which alleged violations of his

Fourth and Fourteenth Amendment rights, failed to state a claim

upon which relief might be granted. On April 13, 2009, D’Amelio

filed a motion to amend (document no. 12), seeking to “retract

the Fourth Amendment and the Fourteenth Amendment out of [his]

civil complaint” and “add legal arguments to [his] property

claims.” I will accept this pleading as a motion to reconsider

my Report and Recommendation.

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1Ferranti v. Moran predates Hudson v. Palmer, 478 U.S. 517

(1984), which I relied on in my Report and Recommendation for the

proposition that no § 1983 claim for the wrongful and intentional

deprivation of property will lie where, as here, a plaintiff is

provided with adequate post-deprivation process.

2

Discussion

As an initial matter, it appears that D’Amelio

misunderstands my Report and Recommendation. D’Amelio’s property

claims are his Fourth and Fourteenth Amendment claims. 

Additionally, the first added legal argument in D’Amelio’s motion

to amend relies on Ferranti v. Moran, 618 F.2d 888 (1st Cir.

1980), a case which relies on the protections of the Fourteenth

Amendment due process clause in establishing the availability of

a deprivation of property claim under § 1983.1

D’Amelio now asserts the deprivation of a liberty interest,

created by state statute, not to be deprived of his property. He

grounds this assertion on the prison’s violation of its own

internal regulation. Policy and Procedure Directive (“PPD”)

9.02(IV)(J)(3)(e), which governs the “issuance and control of

inmate property,” states that “[i]nmates transferring between

locations may bring with them those items prescribed for their

new location and will surrender items not authorized or in excess

of authorization at the new location. Items so turned in will be

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2I note that, as D’Amelio asserts, the prison has conceded

that PPD 9.02(IV)(J)(3)(e) appears to conflict with the practice

of requiring inmates to send property out of the prison upon

transfer to SHU, and that they intend to change the policy to

accord with current practice. The opinion or intentions of

prison officials in this situation are irrelevant to my

consideration of D’Amelio’s claims. I will consider the policy,

as written, to determine its legal effect.

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returned for reissue under regular supply procedures.” The

regulation does not require the prison to retain and store items

for possible return to an inmate at a later date, unless such

practice would fall under a “regular supply procedure.” Further,

a thorough reading of PPD 9.02 bears out that requiring an inmate

to mail out property with five days’ notice upon transfer to a

different housing unit is consistent with prison policy.2 See

PPD 9.02(IV)(A) (at intake property which is unauthorized or in

excess of authorization will be taken from the inmate and

prepared to be sent out); 9.02(IV)(F) (listing ways inmates may

dispose of personal property). PPD 9.02 authorizes the prison to

dispose of abandoned or unclaimed property that may be held in a

“state agency storage room,” pursuant to N.H. Rev. Stat. Ann.

471-C:14. PPD 9.02 describes no other reissue process that

includes storage of inmates’ property for return at a later date. 

Accordingly, I find that the presence of the term “reissue under

regular supply procedures” in PPD 9.02 does not, without more,

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give rise to a right to have property stored while an inmate is

housed in a higher security status and returned when and if he

attains a lower security level in the future. See Sandin v.

Conner, 515 U.S. 472, 493 (1995) (citing, inter alia, Ky. Dep’t

of Corrs. v. Thompson, 490 U.S. 454, 461 (1989); Hewitt v. Helms,

459 U.S. 460, 471-72 (1983) (deprivations that are not severe

enough to constitute a due process violation can amount to

deprivations of procedurally protected liberty interest, provided

that state law, including prison regulations, “narrowly cabins

the legal power of authorities to impose the deprivation (thereby

giving the inmate a kind of right to avoid it).”); Davila-Lopes

v. Zapata, 111 F.3d 192, 196 (1st Cir. 1997). The regulations at

issue here do not so narrowly restrict the discretion of prison

authorities to control inmate property that they give rise to a

claim of a deprivation of a liberty interest held by D’Amelio. 

Conclusion

For the foregoing reasons, nothing D’Amelio argues in this

motion to amend changes my previous recommendation that this 

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action be dismissed. The motion to amend (document no. 12) is

denied.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 16, 2009

cc: Peter D’Amelio, pro se

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