Opinion
CIV-21-173-R
04-06-2021
WAYNE DUKE KALBAUGH, Plaintiff, v. DAVID HOLT, et. al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this civil rights action under 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the Complaint pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(B), the undersigned finds Plaintiff's action should be dismissed for failure to state a claim upon which relief can be granted.
I. Background Information
On March 14, 2017, Plaintiff was convicted, following a jury trial, of Aggravated Attempt to Elude a Police Officer, Possession of a Controlled Dangerous Substance, Possession of a Firearm After Former Conviction of a Felony, and Possession of an Offensive Weapon While Committing a Felony. Doc. No. 1-9; Oklahoma State Courts Network, State v. Kalbaugh, District Court of Oklahoma County, Case No. CF-2014-8557. In connection with the underlying charges, Oklahoma City police officers seized various items of personal property. Doc. No. 1 ("Comp.") at 11-12. Plaintiff contends only a portion of the property was returned. Id. at 13-14.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2014-8557
On October 26, 2018, Plaintiff initiated a civil action in the District Court of Oklahoma County by filing a motion for return of seized property, pursuant to Okla. Stat. tit. 22, § 1321, in which he sought the return of the same, or substantially the same, list of property he places at issue in the present case. See Oklahoma State Courts Network, District Court of Oklahoma County, Case No. CV-2018-2222. He argued the Oklahoma City Police Department no longer had any justification for possessing custody of the subject property as Plaintiff had already been convicted. Id. On January 22, 2019, the state court denied Plaintiff's request for the return of the personal property. Id.
https://www.oscn.net/dockets/GetCaseInformation.aspx?ct=Oklahoma&number=CV-2018-2222
On February 20, 2019, Plaintiff appealed the state court's ruling to the Oklahoma Court of Civil Appeals ("OCCA"). See Oklahoma State Courts Network, Kalbaugh v. Prater, Oklahoma Court of Civil Appeals, Case No. DF-117,770. The OCCA affirmed the state court's decision. Id.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=DF-117770&cmid=125790
By this action, Plaintiff alleges his rights under the Fifth, Seventh, and Fourteenth Amendments were violated by the continued retention, confiscation, and/or destruction of his personal property. See generally Comp. Plaintiff seeks damages in the amount of the value of the property at the time of its seizure plus interest, loss of use, and/or monetary damages in the amount of $50,000.00. Id. at 26-28.
II. Screening of Prisoner Complaints
A federal district court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). After conducting an initial review, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b); 1915(e)(2)(B).
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), "[t]he burden is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Further, a claim is frivolous "where it lacks an arguable basis either in law or in fact" or is "based on an indisputably meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. Analysis
Plaintiff asserts Defendants have violated his constitutional rights based on the retention, confiscation, and/or destruction of his personal property. Although he purports to rely on several constitutional amendments, construing the Complaint liberally, see Haines, 404 U.S. at 520, the undersigned construes Plaintiff's Complaint as asserting a Fourteenth Amendment due process claim. The Supreme Court has held that while due process usually requires a predeprivation hearing prior to the state confiscating personal properly, "the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State's action at some time after the initial taking, can satisfy the requirements of procedural due process." Parratt v. Taylor, 451 U.S. 527, 539 (1981), overruled on other grounds by, Daniels v. Williams, 474 U.S. 327 (1986).
In Coleman v. Turpen, 697 F.2d 1341 (10th Cir. 1982), the Tenth Circuit specifically recognized that when a state confiscates property incident to an arrest, a predeprivation hearing is generally impractical. Id. at 1344.
It might have been impractical for the State to give Mr. Coleman a hearing before it seized the money during his arrest. However, the deprivation Mr. Coleman challenges is not the seizure of the money, but its retention by the State until his execution. A hearing to determine the propriety of this retention is not impractical.Id.
In the present case, the initial confiscation of Plaintiff's property as incident to his criminal charges supports a conclusion that a predeprivation hearing was impractical. Plaintiff, however, challenges the retention, confiscation, and/or subsequent destruction of his property following his convictions. Under the reasoning of Parratt and Coleman, Plaintiff could have a cause of action under § 1983 if this retention and/or destruction occurred without due process of law. Thus, the viability of Plaintiff's claim centers on whether due process was available to him in a post-deprivation remedy.
In his Complaint, Plaintiff refers to the initial seizure of his property as illegal. Comp. at 11. To the extent Plaintiff intended to assert a claim herein based upon the initial seizure, any such claim is barred under Heck v. Humphrey, 512 U.S. 477 (1994), which prohibits consideration of a cause of action in a § 1983 suit if said claim would inherently negate an element of an offense for which the plaintiff was convicted, unless the plaintiff can demonstrate the conviction or sentence has already been invalidated. Id. at 486-87. --------
Oklahoma law provides a specific process to obtain property that was confiscated by the State in the course of a police investigation, subsequent charges, and criminal trials. Specifically, Okla. Stat. tit. 22, § 1321 "provides a remedy to facilitate the return of 'property held in the custody of a municipality, county or the state in any criminal investigation, action or proceeding.'" Kolosha v. State, 397 P.3d 479, 480 (Okla. 2017) (quoting Okla. Stat. tit. 22, § 1321(A)).
In the case of property that is not "stolen or embezzled," the Legislature has authorized a peace officer who has custody of such property to return it to the owner upon satisfactory proof of ownership. [§] 1321(B). Significantly, this provision does not preclude a defendant from securing return of his or her property as the "owner" of the property . . . .
In the event the property is not returned as contemplated by § 1321(B), a defendant /owner may make application to a magistrate for a hearing to order return of the property. § 1321(C). The term magistrate is defined to mean "a judge of the district court, associate district judge, special judge, or the judge of a municipal criminal court of record." Id.Id. at 481-82 (footnotes omitted).
As previously discussed, Plaintiff sought the return of his property under Okla. Stat. tit. 22, § 1321 through the filing of a civil action. See, supra. Ultimately, the state court denied the request.
The litigation history of Plaintiff's current claim and the applicable statutory state law establishes that Plaintiff had an adequate state law remedy available to him with respect to the alleged deprivation of his property. Indeed, he utilized the very process the State of Oklahoma provides to facilitate the return of "property held in [the] custody of a municipality, county or the state in any criminal investigation, action or proceeding." Okla. Stat. tit. 22, § 1321(A). While Plaintiff was not successful under Okla. Stat. tit. 22, § 1321, "[w]hether plaintiff succeeds in redressing his loss through the available state remedies is immaterial; the existence of these alternate remedies bars a Section 1983 procedural due process claim." Khalafala v. Scully, No. CV 08-6773 SJO (FMO), 2009 WL 2351726, at *2 (C.D. Cal. 2009) (citing Willoughby v. Luster, 717 F. Supp. 1439, 1443 (D. Nev. 1989)). See also Broadnax v. Pugh, No. 5:15-03736, 2017 WL 5617768, at *8 (S.D. W. Va. Oct. 24, 2017) ("The mere fact that . . . Plaintiff may be unsuccessful [in obtaining the return of his property] in his State case, does not establish that Plaintiff's property was taken without due process."). Because Plaintiff had a process by which to seek return of his confiscated property, the undersigned finds Plaintiff's Fourteenth Amendment claim relating to the deprivation of the same is not cognizable in a § 1983 action and must be dismissed.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's action be dismissed for failure to state a claim upon which relief may be granted. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by April 26th , 2021, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
Dated this 6th day of April, 2021.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE