Unpublished Disposition, 930 F.2d 26 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 26 (9th Cir. 1989)

Alfred Scott BOURNE, Plaintiff-Appellant,v.George NEUMAYER; Dave Paskett; George Bernick, et al.,Defendants-Appellees.

No. 89-35558.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1991.* Decided March 28, 1991.

Before WALLACE, Chief Judge, O'SCANNLAIN and LEAVY, Circuit Judges.


We must decide whether the appellant, an inmate of the Idaho State Correctional Institution, has alleged an intentional deprivation of property without due process sufficient to state a colorable constitutional violation.

* This case comes before us following the district court's sua sponte dismissal of the plaintiffs' complaint. No service was made on defendants and, by court order, no summons was issued. As the litigation never proceeded beyond the pleading stage, we must accept the plaintiffs' allegations as true. See Evans v. Safeco Life Ins. Co., 916 F.2d 1437, 1439 (9th Cir. 1990).

Upon arrival at the Idaho State Correctional Institution ("ISCI"), inmates are required to sign a form permitting the Idaho Department of Corrections ("IDC") to endorse and deposit into a trust account all checks, cash, and the like, received from outside sources. Similarly, any money earned by an inmate through Prison Industries is deposited into the inmate's prison account. The inmate is then allowed to draw against the account to make purchases at the prison commissary, or can direct that money orders be sent to individuals outside the ISCI. The inmates, however, do not receive interest on the money kept in the trust accounts, nor are they permitted to deposit the money in outside, interest-bearing accounts.

Four inmates at the ISCI, one of whom is the appellant here,1 submitted a pro se class action complaint in the United States District Court for the District of Idaho, alleging that the IDC's imposition of a non-interest bearing account upon the inmates deprived the inmates of various constitutional rights. As such, the plaintiffs maintained that they were entitled to relief under 42 U.S.C. § 1983. The plaintiffs also filed a motion to proceed in forma pauperis.

In an order dated July 5, 1989, the district court granted the plaintiffs' motion to proceed in forma pauperis. However, in the same order the court proceeded to dismiss the complaint, reasoning that under Hudson v. Palmer, 468 U.S. 517 (1984), the plaintiffs failed to state a valid section 1983 action because an adequate remedy existed under Idaho state law. This appeal followed.


In Hudson, the Supreme Court held that "an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available." 468 U.S. at 533. However, the Hudson rationale regarding adequate post-deprivation remedies has not been extended to non-random authorized deprivations. See Bretz v. Kelman, 773 F.2d 1026, 1030 (9th Cir. 1985) (en banc) (holding that the availability of post-deprivation state remedies is relevant only where the constitutional deprivation was "random and unauthorized"). Indeed, just last term the Supreme Court observed:

[T]he reasoning of Parratt and Hudson emphasizes the State's inability to provide predeprivation process because of the random and unpredictable nature of the deprivation, not the fact that only property losses were at stake. In situations where the State feasibly can provide a predeprivation hearing before taking property, it generally must do so regardless of the adequacy of a postdeprivation tort remedy to compensate for the taking.

Zinermon v. Burch, 110 S. Ct. 975, 987 (1990).

Here, the plaintiffs have alleged that the use of trust accounts and the refusal to pay interest on such accounts are the product of official policy of the IDC. Indeed, the plaintiffs attached a copy of the relevant policies to their complaint. Accordingly, as the alleged deprivation cannot be said to be "random" or "unauthorized," the Hudson doctrine does not apply.


Because the district court's sua sponte dismissal was in error, we must reverse and remand. Otherwise, however, we express no opinion on the merits of the appellant's claims.



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit R. 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 Ninth Circuit R. 36-3