United States District Court, D. Utah
MICHAEL A. BACON, Plaintiff,
CORIE HAMILTON, ET AL., Defendants.
MEMORANDUM DECISION AND ORDER ADOPTING REPORT AND
NUFFER UNITED STATES DISTRICT JUDGE.
Report and Recommendation (“R&R”) issued by
United States Magistrate Judge Brooke C. Wells recommends
that Defendants' Motion to Dismiss be granted; that
the Plaintiff's other motions be terminated as moot; and
that the case be dismissed.
Michael A. Bacon (“Bacon”) timely filed an
Objection and Memorandum in Support of his Objection
to this R&R. Mr. Bacon also untimely filed a
second and thirdMemorandum in Support of his
Objection. Defendants unnecessarily filed a
response to Mr. Bacon's Objection. Because Mr.
Bacon is representing himself pro se, all of the above were
considered in preparing this decision. De novo review has
been completed of those portions of the R&R, the proposed
findings and recommendations to which objection was made,
including the record that was before Magistrate Judge Wells
and the reasoning set forth in the R&R. For the
reasons discussed below, Plaintiff's objections are
OVERRULED and the R&R is ADOPTED, granting
Defendant's Motion to Dismiss for lack of subject matter
R&R, Magistrate Judge Wells concludes that Mr.
Bacon's § 1983 claim should be dismissed for
“lack of ripeness and subject matter jurisdiction as
Bacon has not fully pursued available state-court remedies,
” specifically by failing to file a
petition under Utah Code § 24-3-104. In Pinder v.
Mitchell the Tenth Circuit describes three types
of § 1983 cases, two of which do not require exhausting
state remedies while the third does. The two types that do
not require exhausting state remedies are those which allege
“(1) deprivations of rights guaranteed by the Bill of
Rights and incorporated by the Due Process Clause, [or] (2)
substantive due process rights.” The third
type of case - that requires exhausting state remedies -
arises “when a plaintiff complains that his procedural
due process rights were violated.”
Bacon's § 1983 claim is of the third type, that
requires exhausting available state remedies. In his Second
Amended Complaint,  Mr. Bacon alleges the Defendants
improperly disposed of Mr. Bacon's property after seizing
it in connection with his arrest for bank
robbery. Mr. Bacon claims a violation of his
procedural due process rights. Therefore, Mr. Bacon's
§ 1983 claim falls under the third category described in
Pinder. The Tenth Circuit requires Mr. Bacon to exhaust all
state remedies prior to pursuing any federal remedies.
Objection, Mr. Bacon asserts that filing under Utah Code
§ 24-3-104 would be futile and inadequate because (1)
§ 24-3-104 provides relief by returning seized property
which he claims the government does not hold,  and (2) the
Utah statute does not provide for monetary damages in the
event the government improperly disposes of held
Tenth Circuit in Pinder ruled that post-deprivation remedies
must still be sought unless they are
inadequate. There is no dispute that Mr. Bacon's
property was seized by the Utah State government. Even though
there was a federal hold on the property due to a pending
federal case, the property was physically held by the Salt
Lake Police Department. It was this state entity that
allegedly improperly disposed of Mr. Bacon's property.
The property was never held by this court or a federal
entity. Therefore, the proper forum for recovery of those
items is in the Utah State courts. Mr. Bacon even stated that
he believed, after the property had been improperly disposed
of, that some of it had been again impounded by a state
entity, the West Bountiful Police Department. Therefore it
appears some of the property is again in possession of state
authorities. Mr. Bacon has the burden of proving that state
remedies are inadequate. It appears that some of the property
is still with state authorities so that § 24-3-104 is
adequate (under Wallace and Pinder) because the property may
be recovered from the West Bountiful State Department.
Because Pinder requires post-deprivation remedies to be
exhausted, and because § 24-3-104 is an adequate remedy
that Mr. Bacon must exhaust before making a § 1983 claim
in federal court, his Complaint fails to state a claim upon
which this court can grant relief.
R&R, Magistrate Judge Wells also alludes to two other
potential remedies available at the state court level. The
first is a tort claim under Utah Code Ann. §
63G-7-301(2)(a), and the second is a takings claim under the
Utah Constitution as described in Pinder.Mr. Bacon
makes no mention of either of these remedies available to him
in his Objection, nor in any of his Memoranda in Support of
his Objection. As such, any objections Mr. Bacon has about
these claims are effectively waived and they stand as
possible state remedies he must exhaust before bringing a
§ 1983 claim in federal court. Even had Mr. Bacon timely
objected to these remedies as being inadequate, the analysis
under Pinder would be the same: where post-deprivation
remedies are provided by the state, they are not inherently
inadequate and must be exhausted.
complaint, Mr. Bacon cites to two cases,
Wingfield and Brown,  to support his allegation
that his claim is properly before the federal court system
and should therefore be heard. However, in both of these
cases the federal government obtained original physical
possession of the property in question. Here, the property
was never held by the federal government. Therefore,
Wingfield and Brown are distinguishable and do not apply.
Memorandum in support of his Objection, Mr. Bacon attempts to
alter his complaint to include an allegation that the
Defendants violated his Fourth Amendment
rights.However, Mr. Bacon failed to request this
amendment before the submission of the R&R, and therefore
his Motion to Amend is not timely for this action and will
not be considered.
analysis and conclusion of Magistrate Judge Wells are
correct. Therefore, the analysis and conclusion of Magistrate
Judge Wells are accepted and the R&R is adopted.
HEREBY ORDERED that the R&R is ADOPTED and this case