Wright v. Newsome, No. 85-8897

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before FAY, JOHNSON and CLARK; PER CURIAM
• Citation: 795 F.2d 964
• Parties: James WRIGHT, Plaintiff-Appellant, v. Lanson NEWSOME, Warden, Defendant-Appellee. Non-Argument Calendar.
• Docket Number: No. 85-8897
• Decision Date: 06 August 1986

Page 964

795 F.2d 964 James WRIGHT, Plaintiff-Appellant,
v.
Lanson NEWSOME, Warden, Defendant-Appellee. No. 85-8897
Non-Argument Calendar. United States Court of Appeals,
Eleventh Circuit. Aug. 6, 1986.

Page 965

Neal B. Childers, Asst. Atty. Gen., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before FAY, JOHNSON and CLARK, Circuit Judges.

PER CURIAM:

James Wright appeals from the district court's dismissal of his pro se 42 U.S.C. Sec. 1983 action for failure to state a claim upon which relief could be granted. We reverse and remand for further proceedings.

I. FACTS

Wright is an inmate at Georgia State Prison ("GSP"). Taking the facts alleged in the complaint as true, Sergeant Fred Brown ordered fellow GSP correctional officers Pedro Diaz and Eddie Mincey to search Wright's cell on March 28, 1984. In the course of the search, Diaz and Mincey destroyed seven of Wright's photographs and some legal papers. They also seized legal pleadings concerning Wright's challenge to his conviction and a law book belonging to Wright. The pleadings and law book have not been returned.

Wright informed other correctional officers on duty that day about the search and seizure. Unit Manager Sikes declined to photograph the damage in the cell or file a damage report but told Wright to file a grievance. Wright sent a letter to Warden Lanson Newsome informing him of the search and requesting the return of his papers and book, apparently to no avail. He also presented a claim against the Department of Corrections to the Claims Advisory Board pursuant to O.C.G.A. Sec. 28-5

Page 966

-85. The Board rejected the claim on July 16, 1985, after giving Wright an opportunity to present evidence in support of his allegations at one of its meetings, finding insufficient evidence of Department of Corrections negligence.

On August 27, 1985, Wright filed the current civil rights lawsuit pro se, naming Newsome, Diaz, Mincey and unknown "John Does and Richard Does" (correctional officers or other agents of Newsome) as defendants. He alleged First and Fourteenth Amendment violations of his right to access to the courts and to procedural due process of law. He also invoked the court's pendent jurisdiction over his claims under Georgia law for destruction of his property and conversion. He requested declaratory and injunctive relief and damages. He simultaneously asked the court to allow him to proceed in forma pauperis under 28 U.S.C. Sec. 1915.

In an order dated September 6, 1985, prior to service of the complaint on the defendants, the district court dismissed Wright's procedural due process claim on the ground that Wright has access to adequate state remedies for the alleged unauthorized deprivation of his property and so cannot state a claim under the due process clause. Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). It also dismissed his state law claims. With respect to Wright's access to the courts claim, the court ordered Wright to submit a statement of the facts supporting his claim and a description of the relief requested within twenty days. The court ordered service of the order and the complaint on the defendants and invited them to respond to the access to courts claim.

Wright responded to the order by filing a "Motion to Amend" in which he restated the facts contained in his initial complaint and added allegations that the defendants' misconduct was in retaliation for prior lawsuits and administrative grievances he had filed, that black inmates had filed other grievances notifying Newsome of the "outrageous" treatment of blacks by Diaz and Mincey, and that the seizure and destruction of property were committed pursuant to established state procedure. Apparently in support of the latter assertion, Wright stated that officials at GSP have been subject to court orders issued in connection with two law suits concerning GSP "shake-down" procedures and the destruction and confiscation of inmates' legal materials. Finally, Wright included a discussion of the cases supporting his claims.

The district court's order notwithstanding, the defendants have never been served and have not appeared before this court on appeal. Needless to say, they did not respond to the court's order.

The district court denied the motion to amend and dismissed the access to courts claim, thereby disposing of Wright's complaint in its entirety. The court stated that "[p]laintiff's new allegation of 'retaliation' is put forth not out of sincerity, but out of convenience to get around the 'adequate post-deprivation state remedy' requirement of Hudson" and found that "plaintiff seeks to file in a federal district court solely because he believes that his claim...