Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 10-1443

JOSEPH POPE,

Plaintiff, Appellant,

v.

MARK BERNARD, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella, Lipez and Howard, Circuit Judges.

Joseph Pope on brief pro se. Nancy Ankers White, Special Assistant Attorney General, and Joan T. Kennedy, on brief for appellees.

February 10, 2011 Per Curiam. Appellant Joseph Pope filed an action,

primarily based on

, against various prison

officials and the attorney who was representing these officials.

The district court granted summary judgment to the officials and

dismissed appellant’s complaint against the attorney. We affirm

both decisions for essentially the reasons given by the court in

the two relevant Orders (docket # 104 and # 71), adding only the

following comments.

Summary judgment was appropriate on appellant’s claim

that the manner in which his first Kufi had been seized had exposed

him to danger in violation of the Eighth Amendment. That is,

appellant was required, among other things, to submit objective

evidence showing that the seizure had posed “a substantial risk of

serious harm.” Farmer v. Brennan,

(1994).

However, the only evidence in this regard is appellant’s subjective

statement that he had feared that an inmate insurrection might

occur as a result of the seizure, and this simply is not enough to

make out an Eighth Amendment violation.

Summary judgment also was appropriate on appellant’s

claim that the seizure of his Kufi was not accomplished pursuant to

the applicable state regulations and thus violated due process.

The problem with this claim is that the seizure of the Kufi must be

considered to have been “unauthorized” -- having been allegedly

taken in contravention of the regulations -- and it is well-settled

- 2 - that actions which cannot be controlled in advance do not

constitute a due process violation “until and unless [the State] .

. . refuses to provide a suitable postdeprivation remedy.” Hudson

v. Palmer,

(1984). Since appellant nowhere even

alleged, much less submitted facts showing, that Massachusetts does

not provide such remedies, Hudson precludes this claim.

As for the claims against counsel, we will assume,

without deciding, that absolute immunity does not apply to the

allegations that she had ordered the search of appellant’s cell and

the seizure of a second Kufi found therein. We nonetheless

conclude that, even taking these allegations as true, the complaint

in regard to these actions is “patently meritless and beyond all

hope of redemption,” and thus dismissal was warranted. See

Gonzalez-Gonzalez v. United States,

(1st Cir.

2001). We begin with appellant’s retaliation claims and then turn

to his other constitutional claims.

First, the courts to have addressed the issue have held

that the Civil Rights of Institutionalized Persons Act, of which 42

U.S.C. § 1997d is a part, authorizing as it does the attorney

general to initiate a suit, does not create a private right of

action in favor of an individual. See, e.g., Price v. Brittain,

(5th Cir. 1989); McRorie v. Shimoda,

, 782 n. 3 (9th Cir. 1986).

- 3 - As for the Fourth Amendment, the Supreme Court has held

that, since society is not prepared to recognize a prisoner's

expectation of privacy in his or her cell, searches and seizures in

such locations are not protected by that Amendment’s proscription

against unreasonableness. Hudson,

, 528 n.8.

Thus, in Hudson, the Court held that the Fourth Amendment did not

provide a basis for the plaintiff’s claims (1) that the search of

his cell had been done solely for purposes of harassment and (2)

that his property had been destroyed.

Given this, Hudson

precludes Fourth Amendment challenges to prison cell searches and

seizures taken for any reason, whether reasonable or not. See

Hanrahan v. Lane,

(7th Cir. 1984) (per curiam).

In regard to retaliation that violates the First

Amendment, a prisoner, to succeed on such a claim, must establish,

among other things, “a retaliatory adverse act” that is more than

de minimis. Morris v. Powell,

(5th Cir. 2006)

(internal quotation marks and citation omitted). As explained in

Morris, an act is not de minimis if it “would chill or silence a

person of ordinary firmness from future First Amendment

activities.”

(internal quotation marks and citation

omitted). Under this standard, the courts have held that even the

filing of a single, later-dismissed disciplinary charge against an

inmate, even if taken with a retaliatory motive, is insufficient to

qualify as more than de minimis. See, e.g., Bridges v. Gilbert,

- 4 -

(7th Cir. 2009) (holding that “[a] single

retaliatory disciplinary charge that is later dismissed is

insufficient to serve as the basis of a § 1983 action”); Starr v.

Dube,

(1st Cir. 2009) (per curiam)

(same). Here, appellant never even had a disciplinary charge filed

against him regarding possession of the Kufi, and he had no privacy

expectations in his cell under Hudson. Given this, any claim based

on the search of appellant’s cell and the seizure of his Kufi can

only be described as de minimis.

As for the Eighth Amendment, appellant does not contest

the district court’s conclusion that the seizure of the first Kufi

had not violated the Eighth Amendment as it had not resulted in the

denial of “the minimal civilized measure of life’s necessities.”

Order, at 5 (internal quotation marks and citation omitted) (docket

# 104). This is binding, given the absence of any facts indicating

that the second seizure was materially different than the first.

The same conclusion also applies to the search of appellant’s cell,

especially as he has set out no facts describing the nature or

scope of the search.

Appellant’s claim under the due process clause similarly

is deficient as he does not allege that either the search or the

seizure were accomplished pursuant to established state procedures

or policies. Thus, such actions cannot violate procedural due

process unless there are no adequate postdeprivation remedies. See

- 5 - Hudson,

. However, and as with his due process

claim against the other defendants, appellant simply nowhere

alleges that such remedies are lacking, and absent such an

allegation, dismissal is appropriate. See, e.g., Romero-Barcelo v.

Hernandez-Agosto,

(1st Cir. 1996) (affirming the

dismissal of the plaintiff’s complaint where he failed to allege

the absence of adequate postdeprivation remedies); Rumford

Pharmacy, Inc. v. City of East Providence,

(1st Cir. 1992) (same). In any event, it appears that public

employees may be held personally liable for their intentional torts

under Massachusetts law. See, e.g., Spring v. Geriatric Auth. of

Holyoke,

, 734 n.9 (Mass. 1985).

This leaves appellant’s equal protection claim. “In

order to state a claim for discrimination that violates equal

protection, [a plaintiff] must allege that he was intentionally

treated differently from others similarly situated and there was no

rational basis for the difference in treatment.” Toledo v.

Sanchez,

(1st Cir. 2006). As with appellant’s

other claims against Kennedy, the allegation of an equal protection

violation is completely conclusory. In particular, appellant

nowhere claims that he was subject to the search and seizure based

on his Muslim religion, and, more significantly, he nowhere alleges

that his treatment differed from the treatment accorded to other

prisoners. As such, the claim is meritless.

- 6 - Summarily affirmed. See Local Rule 27.0(c).

- 7 -