951 F. 2d 361 - Nelson v. Ducharme

MEMORANDUM**

Terry Nelson, a federal prisoner, appeals pro se the district court's summary judgment in favor of defendant in his civil rights action alleging that he was deprived of his personal property without due process of law. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

We review a grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 110 S.Ct. 3217 (1990). Summary judgment is appropriate if the evidence, construed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

To state a section 1983 claim, the plaintiff must allege facts showing a person acting under color of state law deprived the plaintiff of a right, privilege, or immunity secured by the United States Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).

In his complaint, Nelson alleged that when he was transferred from Washington State Reformatory to the Federal Correctional Institution at Phoenix, Arizona ("FCI"), his property was removed from his cell and packed for shipping by prison officials without his supervision. Nelson further alleged that he did not receive all of his materials after his arrival at FCI. Nelson notified defendant DuCharme that some of his property was missing. When he still did not receive his property, Nelson filed a Standard Tort Claims form with the Washington State Office of Risk Management pursuant to Wash.Rev.Code § 4.92 et seq. Nelson's claim was ultimately denied.

Nelson's complaint alleged that he was deprived of his property without due process of law. When a state actor negligently or intentionally deprives a prisoner of property, no due process right is infringed upon so long as the state provides adequate post-deprivation remedies. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt, 451 U.S. at 544. Washington provides an adequate post-deprivation remedy, and Nelson pursued this remedy. See Wash.Rev.Code § 4.92 et seq. Further, Nelson did not challenge the adequacy of Washington's post-deprivation remedy in his complaint.1 Thus, the district court correctly granted summary judgment for DuCharme. See Tzung, 873 F.2d at 1339-40.

AFFIRMED.