Unpublished Disposition, 934 F.2d 324 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 934 F.2d 324 (9th Cir. 1991)

John D. MULQUEEN, Plaintiff-Appellant,v.S.T. GUITERREZ, A.G. Infante, R. Metz, et al., Defendants-Appellees.

No. 89-55829.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 11, 1990.* Decided May 31, 1991.

Before POOLE, CANBY and DAVID R. THOMPSON, Circuit Judges.


Mulqueen brought this civil rights action under 42 U.S.C. § 1983, alleging that seven employees of the California Department of Corrections had violated his constitutional rights. Specifically, Mulqueen alleged that the prison employees negligently or intentionally lost his television, and that he was denied due process when the prison officials intentionally filed false charges against him and did not afford him a fair hearing prior to sanctioning him.

The district court adopted the Magistrate's Report and Recommendation and granted summary judgment in favor of the defendants. Mulqueen appeals this decision. We affirm.

Mulqueen's claim of a deprivation of property without due process fails whether the alleged deprivation is negligent or intentional. A negligent deprivation does not constitute a violation of 42 U.S.C. § 1983. Daniels v. Williams, 474 U.S. 327 (1986). An intentional deprivation does not constitute a violation of section 1983 when the state provides an adequate post-deprivation remedy, as California has in its tort claims act. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); cf. Parratt v. Taylor, 451 U.S. 527 (1981) (announcing the same rule when a negligent deprivation has occurred).

Mulqueen was afforded all the process that he was due in his ample disciplinary hearing; there was accordingly no violation of procedural due process, even if his allegation of false charges were to be accepted. See Freeman v. Rideout, 808 F.2d 949 953 (2d Cir. 1986), cert. denied, 485 U.S. 982 (1988). Nor did the discipline imposed amount to the kind of impermissible, brutal or wanton treatment that would violate substantive due process or the eighth amendment. See, e.g., Rutherford v. City of Berkeley, 780 F.2d 1444 (9th Cir. 1986); Estelle v. Gamble, 429 U.S. 97 (1976).

Mulqueen also contends that the district court erred in entering summary judgment without first granting his request for further discovery. However, Mulqueen failed to specify how additional discovery would affect the disposition of this case. See Barona v. American Management & Amusement, Inc., 824 F.2d 710, 716 (9th Cir. 1987), modified, 840 F.2d 1394 (1988). There was no error.

Mulqueen's remaining contentions are without merit. We affirm the district court's judgment.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth 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 Ninth Cir.R. 36-3