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Perkins v. Nobilio

United States District Court, S.D. Georgia, Statesboro Division

March 17, 2017

TYRONE PERKINS, Plaintiff,
v.
OFFICER NOBILIO; and LT. EPPERSON, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGEs

         Plaintiff, an inmate at Georgia State Prison in Reidsville, Georgia, submitted a Complaint pursuant to 42 U.S.C. § 1983, contesting certain conditions of his confinement. (Doc. 1.) The Court has conducted an initial review of Plaintiffs Complaint, as required by 28 U.S.C. § 1915 A. For the reasons which follow, I RECOMMEND that the Court DISMISS Plaintiffs Complaint for failure to state a claim, DIRECT the Clerk of Court to CLOSE this case, and DENY Plaintiff leave to appeal in forma pauperis.

         BACKGROUND [1]

         In his Complaint, Plaintiff alleges that he was taken from his cell to the crisis unit to address a mental issue on August 25, 2016. (Doc. 1, p. 7.) During Plaintiffs stay in the crisis unit, Defendant Officer Nobilio packed up Plaintiffs belongings and misplaced a portion of those belongings. (Id.) As a result, when Plaintiff returned from the crisis unit, Defendant Officer Epperson issued only part of Plaintiff s belongings back to him. (Id.) Plaintiff contends that he lost 426 personal photos, in addition to other unspecified items which were lost or stolen. (Id. at p. 8.) He requests compensation for these items or, in the alternative, that Defendants replace his property. (Id.)

         STANDARD OF REVIEW

         Plaintiff seeks to bring this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff submits an affidavit that includes a statement of all of his assets and shows an inability to pay the filing fee and also includes a statement of the nature of the action which shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a complaint in which a prisoner seeks redress from a governmental entity. Upon such screening, the Court must dismiss a complaint, or any portion thereof, that is frivolous or malicious, or fails to state a claim upon which relief may be granted or which seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         When reviewing a Complaint on an application to proceed in forma pauperis, the Court is guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8 ("A pleading that states a claim for relief must contain [among other things] . . . a short and plain statement of the claim showing that the pleader is entitled to relief"); Fed.R.Civ.P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) "if it is 'without arguable merit either in law or fact.'" Napier v. Preslicka. 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).

         Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Thompson v. Rundle, 393 F.App'x 675, 678 (11th Cir. 2010). Under that standard, this Court must determine whether the complaint contains "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must assert "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not" suffice. Twombly, 550 U.S. at 555. Section 1915 also "accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Bilal, 251 F.3d at 1349 (quoting Neitzke v. Williams. 490 U.S. 319, 327 (1989)).

         In its analysis, the Court will abide by the long-standing principle that the pleadings of unrepresented parties are held to a less stringent standard than those drafted by attorneys and, therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) ("Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys.") (emphasis omitted) (quoting Hughes v. Lott 350 F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiffs unrepresented status will not excuse mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) ("We have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.").

         DISCUSSION

         I. Dismissal of Claims Relating to Loss of Property

         Plaintiff claims that Defendant Officer Nobilio misplaced Plaintiffs personal property and failed to return it to him. (Doc. 1, p. 7.) Plaintiff alleges that Defendant Officer Epperson is similarly responsible for the loss of his property because she is the officer-in-charge of inmate property. (Id.) Plaintiff alleges that he filed a grievance regarding the loss of his property, but that grievance was rejected as untimely. (Id. at p. 4.)

         Plaintiffs claims implicate his right to procedural due process. A Section 1983 action alleging a procedural due process clause violation requires proof of three elements: "(1) a deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally inadequate process." Doe v. Fla. Bar, 630 F.3d 1336, 1342 (11th Cir. 2011) (quoting Cryder v. Oxendine. 24 F.3d 175, 177 (11th Cir. 1994)). As to the third element, it is ...


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