United States District Court, D. South Carolina, Anderson/Greenwood Division
ORDER AND OPINION
Kenneth “Syncere” Rivera
(“Plaintiff”), proceeding pro se and in forma
pauperis, filed an action pursuant to 42 U.S.C. §
1983. This matter is before the court for review of the
Magistrate Judge’s Report and Recommendation
(“Report”) (ECF No. 11), filed June 15, 2015,
recommending that Plaintiff’s Complaint (ECF No. 1)
against Bryan P. Stirling, Mr. McKie and Corporal Chappel
(collectively “Defendants”) be dismissed with
prejudice for failure to state a claim on which relief may be
granted and without issuance and service of process.
reasons below, the court ADOPTS the findings of the Report
and DISMISSES Plaintiff’s Complaint (ECF No. 1) with
prejudice. Moreover, due to Plaintiff’s active history
of filing actions that lack a claim for which the court can
grant relief, the court agrees that Plaintiff’s
Complaint (id.) be designated a strike pursuant to
28 U.S.C. § 1915(g).
FACTUAL AND PROCEDURAL BACKGROUND
March 9, 2015, Plaintiff was transferred to Kirkland
Reception and Evaluation Center (“Kirkland”).
(ECF No. 11 at 1.) Plaintiff claims that photographs related
to his pending legal case were confiscated and that he could
not obtain the property despite multiple requests to prison
officials. (ECF No. 1.) As a result, Plaintiff alleges
Defendants violated his First Amendment right to redress of
grievances, Fourth Amendment right to be free from
unreasonable search and seizure and Fourteenth Amendment
right to due process. (Id.) Subsequently, Plaintiff
sought damages and injunctive relief for the return of his
Magistrate Judge filed the Report recommending that this
court dismiss the action with prejudice for failure to state
a claim on which relief may be granted and without issuance
and service of process. (ECF No. 11 at 8.) Further, the
Report recommends Plaintiff’s complaint be designated a
“strike” pursuant to 28 U.S.C. § 1915(g).
(Id.) Plaintiff filed timely Objections on June 25,
2015. (ECF No. 13.)
Magistrate Judge’s Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, and the recommendation has no
presumptive weight-the responsibility to make a final
determination remains with this court. See Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The court is charged
with making a de novo determination of those portions of the
Report and Recommendation to which specific objections are
made, and the court may accept, reject, or modify, in whole
or in part, the Magistrate Judge’s recommendation or
recommit the matter with instructions. See 28 U.S.C.
objects to the Report and alleges his right to file
grievances is protected under the Fourteenth Amendment. (ECF
No. 13 at 3.) The Magistrate Judge recommends that this court
dismiss the Complaint because, given that a meaningful
post-deprivation remedy is available, Plaintiff fails to
state a due process claim on which relief may be granted.
(ECF No. 11 at 5.) The court agrees with the Magistrate
Judge’s recommendation to dismiss Plaintiff’s
Complaint (ECF No. 1).
argues his claim is not frivolous because he has a pending
criminal case and “confiscation of his property without
due process is generally a cognizable claim under civil
rights statute.” (ECF No. 13 at 3 (citing Lewis v.
N.Y., 547 F.2d 4, 6 (2d Cir. 1976)).) However, Plaintiff
provides no evidence of a pending criminal case.
the Supreme Court held that a deprivation of personal
property does not generate a constitutional violation of
procedural due process under § 1983 unless and until the
State fails to provide due process. Mora v. City of
Gaithersburg, MD, 519 F.3d 216, 230 (2008)
(quoting Zinermon v. Burch, 494 US. 113, 125-26
(1990)). The court notes that it has found the grievance
process available to prisoners in South Carolina is an
adequate post-deprivation remedy. Greeve v.
Stonebreaker, No. 9:06-3392, 2007 WL 2288123, at *3
(D.S.C. Aug. 6, 2007) (citing Al-Shabazz v. S.C.,
338 S.C. 354 (2000)).
Plaintiff offers requests to Kirkland prison officials as
evidence of Defendants denying him procedural due process.
(ECF No. 13 at 4-5.) However, the evidence shows Kirkland
staff members furnished Plaintiff with information regarding
the appropriate course of action to retrieve his property.
(Id.) Therefore, Plaintiff’s claim of
inadequate the post-deprivation remedies for personal
property loss is without merit. Accordingly, the court agrees
with the ...