Kelly

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

EDDIE J. KELLY, )

#171049, )

)

Plaintiff, )

)

v. ) CASE NO. 2:24-CV-201-BL-CSC

)

LT. BENNETT, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff Eddie J. Kelly, an inmate proceeding pro se and in forma pauperis, filed

an Amended Complaint under 42 U.S.C. § 1983. Doc. 17. Upon review of the Amended

Complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A1, and for the reasons set forth

below, the undersigned Magistrate Judge RECOMMENDS that this case be DISMISSED

prior to service of process as frivolous.

I. THE AMENDED COMPLAINT

The Amended Complaint alleges that, at some point between January and March of

2022 or 2023—Plaintiff states that he cannot remember the date and year—while

incarcerated at Staton Correctional Facility, he realized his cigarettes were missing. He

alleges:

I were about to be transfer from Staton Fac. when I notice Lt. Bennett didn’t

put my either property in which my other property which I had being asking

1 Under these statutes, the Court is required to dismiss a complaint if it is frivolous or malicious, fails to

state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune

from such relief.

him in he said he place it in my property[.] I have the Officer [illegible] in

inmates who where in the cell here Lt. Bennett tell me he were put my 1 pack

of Newports and four packs of Top’s in my property.[]

I were placed in lock-up the staff responsible for my property I can’t have in

lock-up . . . don’t give inmate a copy of what they recover from your locker

box[.] Lt. Bennett got my 1 pack of Newports and four Top’s off me in said:

will place them with your other property! In once I got ready to transfer it

wasn’t in my property as Lt. Bennett told me and the officer who were

working[.]

Doc. 17 at 5. Plaintiff informed the Warden that “Lt. Bennett said he put [Plaintiff’s] 1

pack of Newports and four Top’s in [his] property in they not there,” and “it almost cost

[Plaintiff] to behavior badly about [his] property.” Id. at 8.

Plaintiff states that he “don’t no what constitutional statutes or right(s)” were

violated based on these events. Id. at 3. He claims he brought this issue before the Board

of Adjustment, but his claim was dismissed because “both parties said it must got mis-

place or lost so they word isn’t enough proof that Lt. Bennett took [Plaintiff’s] property.”

Id. As relief, he seeks $200,000 from each of the named defendants for the “suffering in

pain it cause [him].” Doc. 17-2 at 4, 6.

II. DISCUSSION

To state a claim under § 1983, a plaintiff must demonstrate a violation of his “rights,

privileges, or immunities secured by the Constitution or laws of the United States.” Harvey

v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). The right implicated by the deprivation

of property is the denial of due process of law as provided by the Fourteenth Amendment.

Holt v. Givens, 757 F. App’x 915, 921 (11th Cir. 2018). The Fourteenth Amendment

protects against deprivations of life, liberty, or property by a State without due process of

law. Parratt v. Taylor, 451 U.S. 527, 537 (1981), overruled on other grounds by Daniels

v. Williams, 474 U.S. 327, 330 (1986). However, “[n]othing in [the Fourteenth

Amendment] protects against all deprivations of life, liberty, or property by the State. [It]

protects only against deprivations without due process of law.” Parratt, 451 U.S. at 537

(quotation marks omitted).

A deprivation of property resulting from a state employee’s negligence or lack of

due care does not violate the Fourteenth Amendment. Daniels, 474 U.S. at 328 (“[T]he

Due Process Clause is simply not implicated by a negligent act of an official causing

unintended loss of . . . property.”). And “an unauthorized intentional deprivation of

property by a state employee does not constitute a violation of the procedural requirements

of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation

remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 532 (1984). When a

pre-deprivation hearing is impractical due to the “random, unauthorized act by a state

employee,” a post-deprivation remedy satisfies due process because it is impossible for the

State to predict when a loss will occur. Id. Some post-deprivation remedies that have

satisfied due process are administrative procedures, Parratt, 451 U.S. at 543–44, or

ordinary state tort litigation procedures, Hudson, 468 U.S. at 535.

In the instant action, it is unclear whether Plaintiff believes the deprivation of his

cigarettes by Lt. Bennett was intentional or unintentional. To the extent he believes it was

unintentional, any resulting deprivation did not violate his due process rights under the

Fourteenth Amendment. See Daniels, 474 U.S. at 333. To the extent he believes it was

intentional, his claim must nevertheless fail because an adequate post-deprivation

procedure was available to him at the time of the deprivation. See Tinney v. Shores, 77 F.3d

378, 382 n.1 (11th Cir. 1996). Indeed, Plaintiff has made clear that he used a post-

deprivation administrative procedure when he filed a claim with the Alabama Board of

Adjustment, which is an adequate post-deprivation remedy.

The Eleventh Circuit has specifically recognized that Alabama law provides an

adequate post-deprivation remedy for the loss of property caused by state officials through

the Board of Adjustment. Smith v. Governor for Ala., 562 F. App’x 806, 817–18 (11th Cir.

2014) (holding that the Alabama Board of Adjustment, Ala. Code § 41-9-60, et seq.,

provides a meaningful post-deprivation remedy through which a state inmate may seek

relief for the loss or denial of property even though a recovery may not be the equivalent

of a § 1983 action); Holt, 757 F. App’x at 922 (same). The post-deprivation remedy need

not be presently available to Plaintiff to determine whether the deprivation was with or

without due process; it need only be available at the time the deprivation occurred. See

Parratt, 451 U.S. at 543–44

Because it is clear that an adequate post-deprivation remedy was available to

Plaintiff at the time of the alleged deprivation, Plaintiff was not without due process.

Accordingly, this 42 U.S.C. § 1983 action is due to be dismissed as frivolous. See, e.g.,

Jackson v. Hill, 569 F. App’x 697, 698 (11th Cir. 2014) (dismissing a deprivation of

property claim as frivolous because the inmate had a conversion action available under

Florida law).

III. CONCLUSION

Because Plaintiff’s claims fail as a matter of law, the undersigned concludes that

any further amendment would be futile. See Patel v. Ga. Dep’t BHDD, 485 F. App’x 982,

982 (11th Cir. 2012) (“Futility justifies the denial of leave to amend where the complaint,

as amended, would still be subject to dismissal.”) (citing Burger King Corp. v. Weaver,

169 F.3d 1310, 1320 (11th Cir. 1999)).

Accordingly, for the reasons set forth above, the undersigned Magistrate Judge

RECOMMENDS that this action be DISMISSED prior to service of process as frivolous.

It is further ORDERED that, on or before February 9, 2026, the parties may file

objections to this Recommendation. The parties must specifically identify the factual

findings and legal conclusions in the Recommendation to which objection is made.

Frivolous, conclusive, or general objections will not be considered. The parties are advised

that this Recommendation is not a final order and, therefore, is not appealable.

Failure to file written objections to the Magistrate Judge’s findings and

recommendations in accordance with 28 U.S.C. § 636(b)(1) will bar a party from a de novo

determination by the District Court of legal and factual issues covered in the

Recommendation. Additionally, such failure waives the right of the party to challenge on

appeal the District Court’s order based on unobjected-to factual and legal conclusions

accepted or adopted by the District Court except on grounds of plain error or manifest

injustice. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982) (en banc), overruled by

Douglass v. United Serv. Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc), superseded

by statute, Federal Magistrates Act, Pub. L. No. 111-16, 123 Stat. 1608 (codified as

amended at 28 U.S.C. § 636(b)(1) (2009)); accord 11th Cir. R. 3-1.

DONE this 26th day of January, 2026.

/s/ Charles S. Coody

CHARLES S. COODY

UNITED STATES MAGISTRATE JUDGE