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ABDUL HAKEEM JAHMAL NASEER SHABAZZ v. ODUM

August 15, 1984

Abdul Hakeem Jahmal Naseer SHABAZZ, a/k/a Owen D. X. Denson, Plaintiff,
v.
C.R. ODUM, Unit Manager, Mab Unit, George C. Wilkinson, Warden, Defendant



The opinion of the court was delivered by: CALDWELL

 CALDWELL, District Judge.

 Plaintiff, Abdul Hakeem Jahmal Naseer Shabazz, at the time he was a prisoner at the federal penitentiary in Lewisburg, Pennsylvania, filed a pro se complaint alleging that defendants, C. R. Odum, a unit manager at the prison, and George C. Wilkinson, the warden, violated his constitutional right to due process, and certain Bureau of Prisons' policy statements, when Odum seized plaintiff's radio from his cell. Defendants have filed a motion for summary judgment, *fn1" with supporting brief, affidavits and exhibits, asserting that no constitutional violation took place and, in the language of Fed.R.Civ.P 56(c), they claim that they are entitled to judgment as a matter of law.

 I. Background

 Plaintiff's complaint, a "1331 Form" with a "Statement of Facts And Appendix With Memorandum Of Law And Relief In Support Thereof," makes, in narrative form, the following relevant allegations. On February 22, 1983, defendant Odum entered plaintiff's unattended cell and confiscated his radio. The radio at that time had been modified so that plaintiff could recharge its batteries from a prison battery. After the seizure plaintiff filed a tort claim for the value of the radio and also attempted to recover the radio itself by filing a request for administrative remedy. It is further alleged that defendant Wilkinson conspired with Odum in the taking of plaintiff's property and that both defendants were motivated by racial and religious discrimination.

 Plaintiff contends Odum's action violated his right to due process of law and Bureau of Prisons Policy Statements 5270.3, 541.12, and 541.10. He contends that due process and the policy statements required that he be given notice and a hearing prior to the seizure of the radio. The complaint seeks, among other things, injunctive relief 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. *fn2" 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. *fn3" 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. ...


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