Lawrence v. Swanson Inmate Comm ( 1998 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    DESMOND CHARLES LAWRENCE,
    Plaintiff-Appellant,
    v.
    No. 97-6429
    SWANSON INMATE COMMISSARY
    SERVICES, in its official and
    individual capacity,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the District of South Carolina, at Columbia.
    Dennis W. Shedd, District Judge.
    (CA-97-430-3-19BC)
    Submitted: March 31, 1998
    Decided: June 4, 1998
    Before WIDENER, WILLIAMS, and MOTZ,
    Circuit Judges.
    _________________________________________________________________
    Affirmed in part and vacated and remanded in part by unpublished
    per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Desmond Charles Lawrence, Appellant Pro Se.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Desmond Lawrence brought this 
    42 U.S.C. § 1983
     (1984) action
    alleging that while he was incarcerated at the Richland County Deten-
    tion Center the Defendant seized money from his prison account.
    Lawrence contended that the taking was authorized and in accordance
    with the Defendant's established policies and procedures. Lawrence
    claimed that the seizure of his money violated his procedural due pro-
    cess rights. He sought return of the money and compensatory and
    punitive damages.
    A magistrate judge found that Lawrence had not stated a claim
    under § 1983 because he had an adequate postdeprivation remedy
    under South Carolina state law. The magistrate judge recommended
    that the district court dismiss the action. Lawrence objected, again
    stressing that the Defendant took his money pursuant to authorized
    policies. The district court accepted the recommendation and entered
    judgment for the Defendant. Lawrence timely appealed.
    The district court found that Lawrence had failed to state a claim
    because he had an adequate remedy at state law to redress his loss.
    However, the cases upon which the court relied to reach its decision
    apply only when the deprivation of property is random, unauthorized,
    and not pursuant to established state procedure. See Hudson v.
    Palmer, 
    468 U.S. 517
    , 533 (1984); Parratt v. Taylor, 
    451 U.S. 527
    ,
    543-44 (1981). In this case, Lawrence has alleged that the taking was
    pursuant to established policies. Thus, the availability of Parratt-type
    postdeprivation remedies is irrelevant. See Zinermon v. Burch, 
    494 U.S. 113
    , 136-38 (1990) (Parratt and Hudson apply to situations
    where it is truly impossible for the state to provide predeprivation
    process before a person is unpredictably deprived of his liberty or
    property by the unauthorized conduct of a state actor).
    2
    Lawrence does not allege what policy or regulation authorizes the
    seizure. It may be that the district court knows that no such policy or
    regulation exists. If so, of course, this would provide a basis for dis-
    missal. However, we cannot discern this from the record before us.
    Certainly the district court either sua sponte or on Defendant's motion
    can order Lawrence to cite and state the precise policy or regulation
    on which he relies.
    We express no opinion on the merits of the case. We vacate that
    portion of the order of the district court that accepts the report of the
    magistrate, overrules Lawrence's objections, and dismisses the action,
    and remand for application of the correct legal standard and further
    factual development of the record, if this is necessary. We affirm the
    remainder of the order. We dispense with oral argument because the
    facts and legal contentions are adequately presented in the materials
    before the court and argument would not aid the decisional process.
    The motion for appointment of counsel is denied.
    AFFIRMED IN PART AND VACATED
    AND REMANDED IN PART
    3
    

Document Info

Docket Number: 97-6429

Filed Date: 6/4/1998

Precedential Status: Non-Precedential

Modified Date: 4/18/2021