Triplett v. DuBois ( 1996 )

USCA1 Opinion

          May 7, 1996

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 95-1805



                                   ERVIN TRIPLETT,



                                Plaintiff, Appellant,



                                          v.



                           LARRY E. DUBOIS AND PETER PEPE,



                                Defendants, Appellees.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Joseph L. Tauro, U.S. District Judge]
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                                        Before



                                 Selya, Cyr and Lynch,

                                   Circuit Judges.
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            Ervin Triplett on brief pro se.
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            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and
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        Thomas  E. Abruzzese, Counsel, Department  of Correction, on brief for
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        appellees.





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                 Per  Curiam.  We  have reviewed the  parties' briefs and
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            the  record on appeal.  We affirm essentially for the reasons



            stated  in the  district court's  memorandum, dated  June 29,



            1995.  We add only the following.



                 Even  were we  to  assume, as  appellant Ervin  Triplett



            argues, that he  alleged, and the district  court should have



            considered,  facts  in his  own  motion  for partial  summary



            judgment that specified the  defendants' personal role in the



            alleged deprivation of his rights,  he would not be  entitled



            to relief in this   1983  action, based on those "facts."  He



            claims that he was unlawfully deprived  of his television set



            without  being afforded predeprivation  due process, pursuant



            to  a policy  announced  by defendant  Pepe  and condoned  by



            defendant Dubois, that authorizes the removal of a television



            set from  the cell of an  inmate who is on  "awaiting action"



            status  for  receipt  of  a disciplinary  report.    Triplett



            contends  that  this  policy  is unlawful  as,  according  to



            Triplett, there is no statutory  authorization for it.   Even



            assuming,  arguendo,  that   Triplett  is  correct   in  this
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            contention,1  he, nonetheless,  would  not  prevail.    "[A]n
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               1But  see Mass. Gen. L.  ch. 124,    1(q) (authorizing the
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            commissioner of  correction to make and  promulgate necessary

            rules and regulations incident to  the exercise of his powers

            and  the  performance  of  his  duties  including  rules  and

            regulations  regarding discipline); 103 CMR 430.21(a) (giving

            the  superintendent or  his  designee authority  to place  an

            inmate  under  investigation  for  a   possible  disciplinary

            offense on awaiting action  status, which may include  a more

            restrictive  confinement); and  103 CMR  421.20(5) (providing

            that, in a segregated  unit, a cell may include  a television

            but it shall  be subject  to procedures for  its removal  and



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            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,  533 (1984);
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            see also Watson v.  Caton, 984 F.2d 537, 541 (1st  Cir. 1993)
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            (per curiam) (holding that  there is no  legal basis for a



            1983 action where  the allegation  is that the  action was  a



            deviation from, and not a reflection of, an established state



            procedure).     Triplett  makes  no   allegation  here   that



            Massachusetts affords no adequate postdeprivation remedy, and



            that  ends  the matter.    See  Romero-Barcelo v.  Hernandez-
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            Agosto,  75 F.3d 23, 33 (1st Cir. 1996) (declining to address
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            whether an adequate postdeprivation remedy is available under



            state law  absent either  any allegation or  argumentation on



            the point by the plaintiff).



                 Similarly,  insofar  as  Triplett's  complaint  might be



            construed as alleging a violation of substantive due process,



            he  would  not prevail.   Triplett  does  not (and  could not



            reasonably) contend that an inmate has a constitutional right



            to possess a television set in his cell and the fact that the



            defendants  removed  Triplett's television  set prior  to his



            disciplinary hearing for possessing a razor blade in his cell



            simply does  not rise to  the level of  "conscience shocking"




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            return).



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            conduct.   See Brown v.  Hot, Sexy &  Safer Prods.,  Inc., 68
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            F.3d 525, 531  (1st Cir. 1995) (outlining two  theories under



            which a plaintiff may bring a substantive due process claim -



            - demonstration of a deprivation of an identified liberty  or



            property interest  protected by  the Fourteenth Amendment  or



            state's conduct that "shocks  the conscience"), cert. denied,
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            116 S. Ct. 1044 (1996).



                 The district court order granting the defendants' motion



            to dismiss is



                 Affirmed.
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