Foley v. Santiago ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FREDRICK LYNWOOD FOLEY,
Plaintiff-Appellant,
v.
No. 97-6013
SERGEANT SANTIAGO; MS. WOOD,
Property Control; LIEUTENANT COOK,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CA-96-254-R)
Submitted: May 20, 1997
Decided: June 3, 1997
Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Fredrick Lynwood Foley, Appellant Pro Se. Lance Bradford Leggitt,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Rich-
mond, Virginia, for Appellees.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Fredrick Lynwood Foley, a Virginia inmate, appeals the district
court's dismissal without prejudice of his complaint filed under 42
U.S.C. § 1983 (1994). Foley's complaint was dismissed for failure to
comply with the court's orders that Foley provide evidence of exhaus-
tion of his administrative remedies pursuant to 42 U.S.C.A. § 1997e
(West Supp. 1997). Foley alleged in his § 1983 complaint that one of
the Defendants removed a gold cross from his cell while he was in
isolation. He pursued his grievance against that Defendant through the
first of two administrative levels, but he did not assert in his grievance
any claims against the remaining Defendants.
The district court ordered Foley to provide evidence of exhaustion
of his administrative remedies or an explanation of why he could not
exhaust. See 42 U.S.C.A. § 1997e (West Supp. 1997). Foley submit-
ted a pleading stating that he had been transferred to another prison
and was unable to exhaust. Nevertheless, the district court dismissed
Foley's complaint for failure to comply with its orders regarding
exhaustion of his administrative remedies.
Because Foley's transfer left him with no administrative remedy,
the district court may have abused its discretion in dismissing for fail-
ure to exhaust under § 1997e. However, upon review of the merits of
Foley's § 1983 complaint, we find that he has failed to state a cogni-
zable claim. When the deprivation of a prisoner's personal property
results from a random, unauthorized act of a state employee, proce-
dural due process is satisfied if there is an adequate state post-
deprivation remedy available.1 Here, the Virginia Tort Claims Act
provides an adequate state remedy for conversion of an inmate's per-
sonal property.2 Because there is an adequate state remedy, we find
that Foley's complaint lacks merit. We affirm on that basis. See
generally 42 U.S.C.A. § 1997e(c)(2). We dispense with oral argument
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1 See Hudson v. Palmer, 468 U.S. 517, 533-34 (1984).
2 See Va. Code Ann. § 8.01-195-3 (Michie 1992 & Supp. 1997);
Wadhams v. Procunier, 772 F.2d 75, 78 (4th Cir. 1985).
2
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
3