Unpublished Disposition, 889 F.2d 1097 (9th Cir. 1987)

MEMORANDUM^** 

SUMMARY

Appellant prisoner appeals pro se from summary judgment finding that the prison's seizure of his military catalog from another inmate's cell and subsequent disappearance of the catalog did not violate his constitutional rights under 42 U.S.C. § 1983. The district court ruled that: (1) the administrative rules providing for confiscation of unauthorized property, such as property found in the possession of an inmate other than its owner, do not violate the requirements of due process; and (2) the subsequent disappearance of the catalog was not shown to result from other than negligence and therefore did not give rise to liability under section 1983. We affirm.

FACTS

During a May 1, 1987 search of cells, a prison guard seized a military catalog (Lancia Militaria) marked with appellant Frank Whiteshield's name from inmate Jerald Whitefoot's cell. The seizure occurred pursuant to prison rules prohibiting inmates from possessing other inmates' property without prison authorization. Upon review of the catalog, a guard concluded that it possibly described weapons and survival gear and so might threaten prison authority. Therefore, he placed the catalog in prison mail for delivery to the Security Manager's Office for evaluation. The Security Manager never received the catalog, which presumably was lost in the prison mail system. The guards never filed a misconduct report regarding the incident. In response to Whitefoot's request for return of the catalog, a guard advised Whitefoot in writing of the reasons for seizure of the catalog.

STANDARD OF REVIEW

The circuit court reviews de novo the district court's grant of summary judgment. Conmar v. Mitsui & Co. (U.S.A.), 858 F.2d 499, 501 (9th Cir. 1988). Summary judgment is appropriate only where no genuine issues of material fact exist and the moving party is entitled to prevail as a matter of law. Vucinich v. Paine, Webber, Jackson & Curtis, Inc., 739 F.2d 1434, 1436 (9th Cir. 1984). The court must view the evidence in the light most favorable to the non-moving party. Id.

ANALYSIS

Appellant contends that seizure of his catalog from another inmate's cell and its subsequent loss violated his Fifth and fourteenth amendment rights under section 1983. Section 1983 provides:

Every person who, under color of any statute [or] ... ordinance ... of any State ... subjects ... any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. Appellant contends that: (1) the administrative rules permitting the seizure were unconstitutional; and (2) appellees' failure to issue a misconduct report, explain their reasons for the seizure, and hold a hearing regarding confiscation of the catalog violated the administrative rules, thus resulting in deprivation of his property without due process of law.

The following administrative rules authorized the seizure of the catalog. Oregon Administrative Rule (OAR) 291-105-015(B) (5) states: "No inmates shall knowingly possess property without staff authorization in accordance with Department of Correction rules on Personal Property (Inmate) ((O.A.R. 291-117-005 to 291-117-020)." OAR 291-41-010 defines "contraband" as " [a]ny item which is not authorized by the Corrections Division." ORS 291-41-020(B((1) provides for search of inmates' cells "regularly on an unannounced and unscheduled basis." ORS 291-41-040(F) states that " [d]etection of contraband may be accomplished by any method defined in 291-41-010 through 291-41-035," i.e., by search of inmates' cells as permitted by ORS 291-41-020. ORS 291-41-045(G) implicitly provides for seizure of contraband found during a search. It states:

1. Contraband will be ... placed in secure storage with minimal movement from person to person ...

2. Nuisance type contraband will be turned over to the officer-in-charge of the facility for use as evidence in the disciplinary process.

(Emphasis included.) A prison rule prohibited inmates from possessing other inmates' property without prison authorization. Because Whitefoot lacked authorization to possess appellant's catalog, the catalog was contraband and subject to seizure.

Rules prohibiting prisoners from possessing unauthorized property and permitting seizure of such property are constitutional. The state has

"a compelling interest in maintaining security and order in its prisons and, to the extent that it further this interest in reasonable and non-arbitrary ways, property claims by inmates must give way."

Harris v. Forsyth, 735 F.2d 1235 (11th Cir. 1984) (quoting Sullivan v. Ford, 609 F.2d 197 (5th Cir. 1980). In Harris, the Eleventh Circuit affirmed summary judgment finding that confiscation of a prisoner's money, pursuant to a rule forbidding prisoners to possess money, did not constitute an unconstitutional deprivation of property in violation of section 1983. See also Baker v. Piggott, 833 F.2d 1539 (11th Cir. 1987) (holding the same), and United States v. Russell, 256 F. Supp. 479, 480 (M.D. Pa. 1966) (holding that a penitentiary rule prohibiting inmates from loaning books to other inmates without authorization is "reasonable in the orderly administration of the State institution" and that confiscation of plaintiff's books from another inmate's cell pursuant to this rule was not "arbitrary as to warrant any further inquiry"). The rules at bar are reasonable means to furthering the security and order of a prison and therefore constitutional.

Appellant does not show that appellees arbitrarily applied the rules. Appellant's contentions that appellees violated the administrative rules--requiring issuance of any misconduct report filed, explanation of seizure, and provision of a hearing before confiscation--are meritless. Appellees did not issue a misconduct report because they never filed one. As the prison lost the catalog before it could take disciplinary action, a hearing or further administrative proceedings would have been futile.

Appellant does not offer any evidence suggesting that loss of the catalog resulted from other than negligence. Nonnegligent injury to property does not constitute a "deprivation" of a protected interest within the meaning of, and so does not implicate, the due process clause of the fourteenth amendment. Davidson v. Cannon, 474 U.S. 344 (1986). In Davidson, the Supreme Court held that a prison guard's negligent failure to protect appellant prisoner from attack by another prisoner did not violate section 1983. The Court explained:

Respondents' lack of due care in this case led to serious injury, but that lack of care simply does not approach the sort of abusive government conduct that the Due Process Clause was designed to prevent.

474 U.S. at 347-48. Here, appellants' lack of due care led to minor injury and certainly did not approach the abusive government conduct prohibited by the due process clause.

AFFIRMED.