Bannan v. Angelone

• Decision Date: 11 December 1996
• Docket Number: Civil Action No. 96-0051-R.
• Citation: 962 F.Supp. 71
• Parties: Michael Warren BANNAN, Plaintiff, v. Ronald ANGELONE, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

962 F.Supp. 71

Michael Warren BANNAN, Plaintiff, v. Ronald ANGELONE, et al., Defendants.

Civil Action No. 96-0051-R.

United States District Court, W.D. Virginia, Roanoke Division.

December 11, 1996.

COPYRIGHT MATERIAL OMITTED

Michael Warren Bannan, Coffeewood Correctional Center, Mitchells, VA, pro se.

Lance B. Leggitt, Office of Attorney General, Richmond, VA, for Defendants.

KISER, Chief Judge.

Memorandum Opinion

Plaintiff Michael Warren Bannan has filed this pro se civil action pursuant to 42 U.S.C. § 1983, with jurisdiction vested pursuant to 28 U.S.C. § 1343. In his complaint, plaintiff, who is an inmate within the Virginia Department of Corrections ["VDOC"], contends that a new policy adopted by the VDOC in regard to the possession of personal property violates his constitutional rights in a number of respects. Plaintiff names Ron Angelone, Gene Johnson and George Dodson as defendants. He seeks injunctive relief.

The defendants, through counsel, filed a motion to dismiss that, due to the inclusion of documentary support, I shall construe as a motion for summary judgment. See Fed. R. Civ. Pro. 12(b)(6). The court notified the plaintiff of the defendants' motion as required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), and warned plaintiff that judgment might be granted for the defendants if plaintiff did not respond to the motion. Plaintiff has responded. Therefore, the motion is now ripe for disposition.

Upon motion for summary judgment, the court must view the facts and the inferences to be drawn from those facts, in the light most favorable to the party opposing the motion. Ross v. Communications Satellite Corp., 759 F.2d 355 (4th Cir.1985). summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). However, "[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

When a motion for summary judgment is made and properly supported by affidavits, depositions, or answers to interrogatories, the adverse party may not rest on the mere allegations or denials of the adverse party's pleadings. Instead, the adverse party must respond by affidavits or otherwise and present specific facts showing that there is a genuine issue of disputed facts for trial. Fed.R.Civ.P. 56(e). If the adverse party fails to show a genuine issue of fact, summary judgment, if appropriate, may be entered against the adverse party.

In the complaint, plaintiff alleges that a new regulation within the VDOC requires inmates to sign a form releasing the VDOC from civil liability in the event that the inmate's personal property is lost or stolen. A copy of the regulations submitted by the defendants reveals that inmates may recover up to $50.00 for lost or damaged personal property, or for a greater monetary amount in certain instances, through the prison grievance procedure. Plaintiff also indicates that a recently issued regulation prohibits inmates from possessing items of property authorized for possession under previous regulations. A review of the regulations further discloses that inmates have until they are transferred or until January 1, 1997, to dispose of disapproved property on their own by destroying it or sending it to a location outside of the prison.

Plaintiff first appears to argue that the foregoing regulations and policies violate some right of his to possess personal property while in prison. I disagree. Prison administrators have broad discretion in the management of correctional institutions. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Unless other rights such as religion or speech are involved, jails may thus constitutionally disallow the possession of personal property. See Rosson v. Weatherholtz, 405 F.Supp. 48 (W.D.Va.1975); Abbott v. McCotter, 13 F.3d 1439 (10th Cir. 1994). Therefore, I find nothing per se unconstitutional in disallowing the possession of certain items of property. Accordingly, I shall grant the defendants' motion for summary judgment as to plaintiff's claim that he has a general right to possess personal property.

Plaintiff, however, also appears to assert that the policy of disallowing word processors and typewriters prevents him from gaining meaningful access to the courts. Reasonable access by prisoners to both state and federal courts and to communication with attorneys is a guaranteed right. Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941); see Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). In addition to showing a denial of some item necessary for litigation, however, an inmate must produce evidence of actual injury or specific harm. Lewis v. Casey, ___ U.S. ___, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Strickler v. Waters, 989 F.2d 1375 (4th Cir.1993). In fact, in order to establish a claim of constitutional dimensions, an inmate must come forward with something more than vague and conclusory allegations of harm. He must establish a specific prejudice stemming from the denial of the item that he felt was necessary for proceeding in state or federal court. Strickler, supra. Plaintiff has presented no specific facts whatsoever indicating any substantial likelihood of prejudice stemming from the denial of a typewriter or word processor. Indeed, I take judicial notice of the fact that many, perhaps most, inmates file civil actions by use of nothing more than the use of pen and paper. Accordingly, I shall grant the defendants' motion for summary judgment as to plaintiff's claim that the new policy hinders his ability to gain meaningful access to the courts.

Plaintiff next appears to contend that the policy requiring him to release prison officials from liability deprives him of a due process right to post-deprivational remedies for property loss. Insofar as plaintiff intends to argue that he has a right to due process under circumstances in which prison officials deprive him of property by an act of negligence, he has no such due process right. See Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986). If plaintiff wishes to argue that the policy by which he feels aggrieved violates his due process rights by precluding him from seeking redress for intentional deprivations of property, this argument must also fail. "[A]n intentional ... deprivation of property by a state employee does not violate the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Copies of the prison regulations submitted by the defendants reveal a provision for the recovery of property or compensation for the loss of property through the prison grievance procedures. To the extent that these procedures are inadequate, plaintiff has waived any additional avenue of redress through his release of civil liability. As with most constitutional rights, plaintiff may knowingly and intelligently waive a right to due process. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (criminal defendant may waive right to have government prove his guilt beyond a reasonable doubt)....