Opinion · Court of Appeals for the Eighth Circuit
Earl E. Nickens v. Carl White
536 F.2d 802
- Type
- Opinion
- Court
- Court of Appeals for the Eighth Circuit
- Jurisdiction
- Federal
- Date
- 1976-06-18
- Topic
- general
PER CURIAM. Earl E. Nickens, an inmate at the Missouri Training Center for Men at Moberly, Missouri, brought this action pursuant to 42 U.S.C. § 1983 for the alleged deprivation of his constitutional rights. Specifically, he complained that the confiscation by the defendants 1 of a catalogue of office supplies, which he had requested from Keller’s Office Supplies in Moberly and which had been mailed to him at the institution, (1) deprived him of property without due process of law, (2) deprived him of adequate and meaningful access to the courts, and (3) deprived him of his First Amendment rights. The District Court sustained the defendants’ motion to dismiss, holding that Nickens had failed to state a claim for which relief could be granted.
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NICKENS v. WHITE,536 F.2d 802(8th Cir. 1976)
EARL E. NICKENS, APPELLANT, v. CARL WHITE ET AL., APPELLEES.
No. 75-1929.
United States Court of Appeals, Eighth Circuit.
Submitted May 24, 1976.
Decided June 18, 1976.
Page 803
John C. Danforth, Atty. Gen., and Robert M. Sommers, Asst. Atty. Gen., Jefferson City, Mo., filed appellees' brief.
Before LAY, STEPHENSON and WEBSTER, Circuit Judges.
[2] We are enjoined to view civil right pleadings liberally.Haines v. Kerner,404 U.S. 519,92 S.Ct. 594,30 L.Ed.2d 652(1972);Anderson v. Sixth Judicial District Court,521 F.2d 420(8th Cir. 1975). Such pleadings must nonetheless not be conclusory and must set forth the claim in a manner which, taking the pleaded facts as true, states a claim as a matter of law.See Anderson v. Sixth Judicial District Court, supra; Ellingburgv. King,490 F.2d 1270,1271(8th Cir. 1974). Many of the allegations of patterns and practices set forth in the complaint are broad and conclusory. We are concerned only with the specific allegation that the particular office supplies catalogue was confiscated by the defendants.
[3] The deprivation of property as well as injury to the person may be the basis for a civil rights action.Lynch v. HouseholdFinance Corp.,405 U.S. 538,92 S.Ct. 1113,31 L.Ed.2d 424(1972);Carter v. Estelle,519 F.2d 1136(5th Cir. 1975). We think, however, that the property interests involved in the catalogue as pleaded are sode minimisthat the confiscation in the one instance pleaded does not constitute such a taking of property that due process rights are implicated.Cf. Fuentes v.Shevin,407 U.S. 67,90n. 21,92 S.Ct. 1983,32 L.Ed.2d 556(1972);Pitts v. Griffin,518 F.2d 72(8th Cir. 1975).
[4] Appellant's allegation that the seizure of the catalogue has interfered with his access to the courts is without factual basis. The mere deprivation of an office supply catalogue cannot be said to deprive an inmate of an adequate opportunity for access to the courts, and his contention is without merit.Cf.Noorlander v. Ciccone,489 F.2d 642,650(8th Cir. 1973).Page 804
[5] The disposition of the appellant's First Amendment claim, however, presents special problems. A very recent opinion of the Supreme Court has rejected the distinction advanced in earlier decisions between expressive speech and commercial speech, such as the supply catalogue in question, and holds that both are entitled to the protection of the First Amendment.See VirginiaState Board of Pharmacy v. Virginia Citizens Consumer Council,Inc.,___ U.S. ___,96 S.Ct. 1817,48 L.Ed.2d 346, 44 U.S.L.W. 4686 (U.S. May 24, 1976). The Court, however, stopped short of holding that commercial speech could never be regulated in any manner.Id.at ___,96 S.Ct. at 1829, 44 U.S.L.W. at 4692.
[6] We turn then for guidance toProcunier v. Martinez,416 U.S. 396,414,94 S.Ct. 1800,40 L.Ed.2d 224(1974), which condemns systematic and arbitrary confiscation of mail matter without standards which are reasonably related to legitimate governmental interests. Prisoners enjoy First Amendment protection as well as the protections of the due process clause.Wolff v. McDonnell,418 U.S. 539,555-56,94 S.Ct. 2963,41 L.Ed.2d 935(1974).
[7] We cannot say from this record that the appellant could prove no set of facts which would entitle him to relief thereunder.Haines v. Kerner, supra,404 U.S. at 520-21,92 S.Ct. 594.Seealso Conley v. Gibson,355 U.S. 41,45-46,78 S.Ct. 99,2 L.Ed.2d 80(1957). It may well be that upon a more fully developed record the claims of the appellant will not withstand a motion for summary judgment under Fed.R.Civ.P.56; but at this stage, and especially in light ofVirginia State Board ofPharmacy v. Virginia Citizens Consumer Council, Inc., supra,dismissal based upon thepro sepleadings alone is premature.
[8] On remand, the District Court should also liberally afford the appellant an opportunity to amend his complaint to allege facts which will cure the defects in his due process claims, failing which, they should be rejected.
[9] Reversed and remanded for further proceedings consistent with this opinion.
- The defendants in this action are the warden, associate wardens, mailroom supervisor, and other officials of the Training Center. ↩