The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DIVINE SHAKIM WHEELER, )
)
Plaintiff, )
)
v. ) 1:25CV64
)
ALBERT KING, )
)
Defendant(s). )
ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, a prisoner of the State of North Carolina, submitted a civil rights action
pursuant to 42 U.S.C. § 1983, together with an application to proceed in forma pauperis.
The form of the Complaint is such that a serious flaw makes it impossible to further process
the Complaint. The problem is:
1. Plaintiff’s claim or claims are not clear. The Complaint alleges that Plaintiff’s
family attempted to send him a religious book but that Defendant did not allow
him to have the book because it allegedly contained “contraband.” The
Complaint does not contain any allegations regarding the nature of the
“contraband” claimed by Defendant other than to deny that the book contained
any. Therefore, the facts underlying Plaintiff’s claims are unclear. Further, at
times, it appears that the Complaint attempts to raise a claim based purely on
the confiscation of the book as property. Where a post-deprivation remedy is
available under state law for deprivation of property, there is no procedural
due process claim under § 1983 for such takings. Hudson v. Palmer, 468 U.S.
517, 533 (1984); Chamberlain v. Jordan, No. 1:06CV73, 2006 WL 3386840,
at *4 (M.D.N.C. Nov. 17, 2006) (unpublished). Prisoners in North Carolina
may bring actions for conversion in the state courts based on any deprivation
of property. Wilkins v. Whitaker, 714 F.2d 4, 6 (4th Cir. 1983). Therefore,
Plaintiff cannot bring a procedural due process claim under § 1983 based on
the deprivation or seizure of his property. Moore v. Plaster, 266 F.3d 928,
929-33 (8th Cir. 2001); Wilkins, supra; English v. Burke County Sheriff’s
Office, No. 1:11-cv-144-RJC, 2012 WL 3811798, at * 3-4 (W.D.N.C. Sept. 4,
2012) (unpublished). Instead, he must seek any remedy in the state courts for
property-related claims. At other times, it appears that the Complaint may
attempt to raise a claim based on interference with Plaintiff’s practice of his
religion. If so, to establish such a claim, Plaintiff must allege facts
demonstrating that he holds a sincere religious belief and that the practice or
policy he challenges places a substantial burden on his ability to practice his
religion. Wilcox v. Brown, 877 F.3d 161, 168 (4th Cir. 2017). The present
Complaint is not clear that this is the case or even that Plaintiff seeks to raise
such a claim. Plaintiff must file a Complaint that makes his claims clear and
sets out the facts supporting those claims.
Consequently, the Complaint should be dismissed, but without prejudice to Plaintiff
filing a new complaint, on the proper § 1983 forms, which corrects the defect of the present
Complaint. To further aid Plaintiff, the Clerk is instructed to send Plaintiff new § 1983
forms, instructions, an application to proceed in forma pauperis, and a copy of pertinent parts
of Fed. R. Civ. P. 8 (i.e., Sections (a) & (d)).
In forma pauperis status is granted for the sole purpose of entering this Order and
Recommendation.
IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole
purpose of entering this Order and Recommendation. The Clerk is instructed to send
Plaintiff § 1983 forms, instructions, an application to proceed in forma pauperis, and a copy
of pertinent parts of Fed. R. Civ. P. 8 (i.e., Sections (a) & (d)).
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IT IS RECOMMENDED that this action be dismissed sua sponte without prejudice
to Plaintiff filing a new complaint, on the proper § 1983 forms, which corrects the defects
cited above.
This, the 10th day of February, 2025.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
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