United States District Court, D. South Carolina
ORDER AND NOTICE
V. Hodges United States Magistrate Judge
David Mosley (“Plaintiff”), proceeding pro se and
in forma pauperis, filed this complaint pursuant to 42 U.S.C.
§ 1983, alleging a violation of his civil rights.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B)
and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned
is authorized to review such complaints for relief and submit
findings and recommendations to the district judge.
Factual and Procedural Background
is a pretrial detainee at the Cherokee County Detention
Center. [ECF No. 1 at 2]. He alleges on May 4, 2019, Officer
Katina Scarcella (“Scarcella”) transferred $500
out of his account without his permission to deprive him of
the funds necessary to obtain counsel. Id. at 4-6.
Plaintiff states Scarcella obtained the money under false
pretense, and he asserts causes of action for larceny and
card transaction fraud. Id. at 4. He requests the
$500 be refunded to his account. Id. at 6.
Standard of Review
filed his complaint pursuant to 28 U.S.C. § 1915, which
permits an indigent litigant to commence an action in federal
court without prepaying the administrative costs of
proceeding with the lawsuit. To protect against possible
abuses of this privilege, the statute allows a district court
to dismiss a case upon a finding that the action fails to
state a claim on which relief may be granted or is frivolous
or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A
finding of frivolity can be made where the complaint lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992). A claim based on a
meritless legal theory may be dismissed sua sponte under 28
U.S.C. § 1915(e)(2)(B). See Neitzke v.
Williams, 490 U.S. 319, 327 (1989).
complaints are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). A federal court is charged with
liberally construing a complaint filed by a pro se litigant
to allow the development of a potentially meritorious case.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). In
evaluating a pro se complaint, the plaintiff's
allegations are assumed to be true. Fine v. City of
N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated
liberal construction afforded to pro se pleadings means that
if the court can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should
do so. Nevertheless, the requirement of liberal construction
does not mean that the court can ignore a clear failure in
the pleading to allege facts that set forth a claim currently
cognizable in a federal district court. Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Although the court must
liberally construe a pro se complaint, the United States
Supreme Court has made it clear a plaintiff must do more than
make conclusory statements to state a claim. See Ashcroft
v. Iqbal, 556 U.S. 662, 677‒78 (2009); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Rather, the complaint must contain sufficient factual matter,
accepted as true, to state a claim that is plausible on its
face, and the reviewing court need only accept as true the
complaint's factual allegations, not its legal
conclusions. Iqbal, 556 U.S. at 678‒79.
state a plausible claim for relief under 42 U.S.C. §
1983, an aggrieved party must sufficiently allege he was
injured by “the deprivation of any [of his or her]
rights, privileges, or immunities secured by the [United
States] Constitution and laws” by a
“person” acting “under color of state
law.” See 42 U.S.C. § 1983; see
generally 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1230 (3d ed.
construed, Plaintiff presents a Fourteenth Amendment claim of
deprivation of property without due process. The Due Process
Clause protects prisoners from deprivation of property
without due process of law, Wolff v. McDonnell, 418
U.S. 539, 556 (1974), and prisoners have a protected interest
in their personal property, see Hansen v. May, 502
F.2d 728, 730 (9th Cir. 1974). However, while an authorized,
intentional deprivation of property is actionable under the
Due Process Clause, “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 [state] postdeprivation remedy for the loss is
available.” Hudson v. Palmer, 468 U.S. 517,
533 (1984); see also Parratt v. Taylor, 451 U.S.
527, 541-42 (1981) (holding the Due Process Clause of the
Fourteenth Amendment is not violated when a state employee
negligently deprives an individual of property, provided that
the state makes available a meaningful postdeprivation
remedy), overruled on other grounds by Daniels v.
Williams, 474 U.S. 327, 332 (1986); Logan v.
Zimmerman Bush Co., 455 U.S. 422, 435-36 (1982) (holding
that postdeprivation remedies do not satisfy due process
where a deprivation of property is caused by conduct pursuant
to established state procedure, rather than random and
unauthorized action); Daniels v. Williams, 474 U.S.
327, 332 (1986) (“Where a government official's act
causing injury to life, liberty, or property is merely
negligent, ‘no procedure for compensation is
constitutionally required.'”) (quoting
Parratt, 451 U.S. at 548).
South Carolina, prisoners may bring a civil action in state
court for recovery of personal property against prison
officials who deprived them of property without state
authorization.” Drake v. Brown, C/A No.
6:09-1449-JFA-WMC, 2009 WL 1749375, at *2 (D.S.C. June 22,
2009) (citing McIntyre v. Portee, 784 F.2d 566, 567
(4th Cir. 1986) (finding South Carolina's postdeprivation
remedy under S.C. Code Ann. § 15-69-10 et seq.
sufficient to satisfy due process requirements)).
has not alleged Scarcella acted pursuant to established state
procedure, nor has Plaintiff alleged why South Carolina's
postdeprivation remedy is inadequate or unavailable.
Accordingly, Plaintiff has failed to state an actionable ...