for the return of the radio as well as compensatory and punitive damages.
Defendants' answer admits that the radio was taken but only because it had been altered. They deny any constitutional violation or that Policy Statements 5270.3, 541.12 and 541.10 were applicable to the confiscation.
II. Standard of Review of Pro Se Complaints and for the Grant of Summary Judgment
While pro se pleadings are entitled to liberal construction, the plaintiff must still set forth facts sufficient to withstand summary judgment. King v. Cuyler, 541 F. Supp. 1230, 1232 n. 3 (E.D.Pa.1982).
Summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court must resolve any doubts as to the existence of genuine issues of fact against the moving parties, and inferences to be drawn from the evidentiary sources submitted to the court must be resolved in favor of the non-moving party. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402 (3d Cir.1981). Based upon the foregoing standards, and keeping in mind the "drastic" nature of the remedy, id. at 405, we nevertheless conclude after careful review of the pleadings, exhibits, and affidavits submitted in favor of, and against the motion, that summary judgment in favor of the defendants is appropriate for the reasons set forth below.
III. Alleged Due Process Violation
The material facts in this case are simple and not in dispute. Plaintiff admits that he kept a radio in his cell which had been modified to permit its batteries to be recharged from a prison battery. Defendants admit that they seized the radio without giving plaintiff notice or a hearing prior to the seizure. The only issue is whether plaintiff was entitled to a pre-seizure hearing or whether the postdeprivation remedies available to plaintiff adequately protected his due process rights.
Defendants assert that the radio was seized because it was contraband as defined by Bureau of Prisons Policy Statement 5580.1. Paragraph 6(a) of the statement defines contraband as any item not "issued by the staff, purchased in the commissary, purchased or received through approved channels, approved for receipt by an authorized staff member or authorized by institution regulation." (Defendants' Ehxibit 2). Defendant Odum discovered the radio in plaintiff's cell attached by copper wire to a battery charger. (Defendants' Exhibit 1). Plaintiff admits it was in this condition because he wished to recharge the batteries already in the radio rather than buy new ones with his meager prison wages. (Plaintiff's Complaint). Defendant Wilkinson asserts that the radio in its altered condition was "a fire hazard and disruptive to the good order of the institution." (Defendants' Exhibit 2).
Plaintiff does not question whether defendant Odum could have seized the radio as contraband. Rather, as noted previously, he contends that he should have been given a preseizure hearing of some kind where he could have presented reasons why the radio should not have been taken from him.
In support of his position he also cites Bureau of Prisons Policy Statement 5270.3, dealing with procedures to be followed when disciplinary sanctions are imposed on an inmate.
In response, relying upon Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393, 52 U.S.L.W. 5052 (1984), and Slade v. Petrovsky, 528 F. Supp. 99 (M.D.Pa.1981), defendants assert that, because the federal government has provided postdeprivation remedies for the seizure, there was no due process violation.
Defendants' reliance upon Hudson and Slade is misplaced. In those cases, the conduct of the state official, either negligent, Slade,4 or intentional, Hudson, had either been in violation of an institution's rules, or a random action unauthorized by state procedure. In Hudson, relying upon Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), the Supreme Court reasoned that postdeprivation remedies were adequate to protect plaintiff's right to due process in situations involving intentional, unauthorized conduct because such conduct cannot be anticipated and controlled in advance. Hence, predeprivation remedies were "impracticable." U.S. at , 104 S. Ct. at 3203. Significantly, however, the Court also noted:
Two terms ago, we reaffirmed our holding in Parratt in Logan v. Zimmerman Brush Co., 455 U.S. 422 [102 S. Ct. 1148, 71 L. Ed. 2d 265] (1982), in the course of holding that postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action.