Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1015 (9th Cir. 1991)

Harry James SEAGRAVE, Plaintiff-Appellant,v.COUNTY OF SAN FRANCISCO, et al.,, the Szabo Food Service ofCalifornia, Inc., and Art Apolinario, Defendants-Appellees.

No. 90-16338.

United States Court of Appeals, Ninth Circuit.

Submitted April 12, 1991.* Decided May 20, 1991.

Before WALLACE, Chief Judge, and GOODWIN and FLETCHER, Circuit Judges.


MEMORANDUM

Seagrave, a former prisoner at the San Francisco County Jail, filed a 42 U.S.C. § 1983 action alleging a deprivation of rights under the fourteenth amendment. Seagrave contends that certain inmates who worked at the prison commissary privately sold supplies to other inmates, thereby depriving the Inmates' Welfare Fund of the profits that would have been received from the proper sale of those goods. The district court dismissed Seagrave's claim with prejudice for failure to state a claim. The district court had jurisdiction pursuant to 28 U.S.C. § 1343(a) (3). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

We review de novo the district court's dismissal of Seagrave's claim. David v. United States, 820 F.2d 1038, 1040 (9th Cir. 1987). In reviewing the dismissal, we must accept as true Seagrave's allegations of fact. Usher v. City of Los Angeles, 828 F.2d 556, 558 n. 1 (9th Cir. 1987). "We may affirm the district court on a ground not selected by the district judge so long as the record fairly supports such an alternative disposition of the issue." Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1437 (9th Cir. 1986), cert. denied, 479 U.S. 1064 (1987).

The district court concluded that Seagrave's claim should be dismissed because it rested on alleged negligence of the defendants, which is insufficient to support a section 1983 claim. See Daniels v. Williams, 474 U.S. 327, 328 (1986) (Daniels) . We agree that the action was correctly dismissed. We read Seagrave's claim regarding the private sale of commissary supplies and consequent deprivation of the Inmates' Welfare Fund to include an allegation of conspiracy to cover up the secret sales. We conclude that Seagrave's complaint involves more than allegations of negligence, and therefore do not adopt the district court's reasoning.

Instead, we observe that Seagrave's alleged deprivation of property "did not occur as a result of some established state procedure." Parratt v. Taylor, 451 U.S. 527, 543 (1981) (Parratt), overruled in part, Daniels, 474 U.S. at 328. Even assuming that such a deprivation occurred, it was "a result of the unauthorized failure of agents of the State to follow established state procedure." Id. The Supreme Court has held that in such circumstances a predeprivation hearing is not necessary to satisfy the dictates of the due process clause, so long as the state provides "some meaningful opportunity subsequent to the initial taking for a determination of rights and liabilities." Id. at 541; see King v. Massarweh, 782 F.2d 825, 827 (9th Cir. 1986) (holding that plaintiffs alleging a loss of property as a result of unauthorized police conduct are "relegated to the post-deprivation remedies available through the civil tort law process for their due process claims"). Seagrave has put forth no reason why the remedies provided by the California state courts would not fully compensate him for the property loss alleged. He therefore "has not alleged a violation of the Due Process Clause of the Fourteenth Amendment," and the district court was correct in dismissing his section 1983 claim. Parratt, 451 U.S. at 543.

AFFIRMED.

 *

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