Unpublished Disposition, 928 F.2d 408 (9th Cir. 1991)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 408 (9th Cir. 1991)

Larry D. MORROW, Plaintiff-Appellant,v.Roger CRIST, Warden, Fred Markussen, CPO, Theresa Woods, Lt.Complex Mail/Property, Defendants-Appellees.

No. 90-16054.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 13, 1990.* Decided March 14, 1991.

Appeal from the United States District Court for the District of Arizona, No. CV-90-0138-WDB; William D. Browning, District Judge, Presiding.

D. Ariz.

AFFIRMED.

Before BRUNETTI, FERNANDEZ and THOMAS G. NELSON, Circuit Judges.


MEMORANDUM** 

Larry Morrow, an Arizona state prisoner, appeals pro se from the dismissal of his 42 U.S.C. § 1983 action by the district court of Arizona. We have jurisdiction pursuant to 28 U.S.C. 1291 and affirm.

In his suit Morrow asserted that his first amendment and due process rights were violated when prison officials refused to accept a package that was mailed to him at the Arizona State Prison-Tucson. The district court dismissed the action, sua sponte, for failure to state a due process claim. Upon a motion for reconsideration the court considered and dismissed Morrow's first amendment action, also for failure to state a claim.

As the district court correctly decided, the Supreme Court has held that because property interests are created by state laws rather than the Constitution, persons having claims against states should resort to state tort claims procedures for lost property claims rather than to section 1983. Parratt v. Taylor, 451 U.S. 527, 543 (1981). Arizona has such a tort claim procedure, A.R.S. Sec. 12-821, and as such Morrow's section 1983 action, based upon an asserted violation of due process, was properly dismissed for failure to state a claim.

The district court also properly held that Morrow failed to state a section 1983 claim for a first amendment violation. Morrow's argument appears to be that by returning his package, prison officials interfered with his right to engage in communication and thus deprived him of his first amendment rights under Procunier v. Martinez, 416 U.S. 396 (1974), and Wheeler v. United States, 640 F.2d 1116 (9th Cir. 1981). As the district court noted, however, Morrow's complaint does not relate to his ability to communicate but rather is concerned with the recovery of his property. No first amendment violation is apparent from the pleadings and thus we affirm the judgment of the district court dismissing Morrow's complaint for failure to state a claim.

Appellee has requested costs and attorney's fees pursuant to 42 U.S.C. § 1988. Pursuant to section 1988, a prevailing defendant may be awarded costs and attorney's fees if the plaintiffs claim was "frivolous, unreasonable, or without foundation." Jensen v. Stangel, 762 F.2d 815 (9th Cir. 1985). In this case, however, there is no indication that the State made a section 1988 attorney's fees claim before the trial court. Defendant cannot raise this issue for the first time on appeal and the request for costs and attorney's fees is therefore denied. See In re Wind Power Systems, Inc., 841 F.2d 288, 290 n. 1 (9th Cir. 1988).

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3