
USCA1 Opinion

	




          May 7, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1805                                   ERVIN TRIPLETT,                                Plaintiff, Appellant,                                          v.                           LARRY E. DUBOIS AND PETER PEPE,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Ervin Triplett on brief pro se.            ______________            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        Thomas  E. Abruzzese, Counsel, Department  of Correction, on brief for        ____________________        appellees.                                 ____________________                                 ____________________                 Per  Curiam.  We  have reviewed the  parties' briefs and                 ___________            the  record on appeal.  We affirm essentially for the reasons            stated  in the  district court's  memorandum, dated  June 29,            1995.  We add only the following.                 Even  were we  to  assume, as  appellant Ervin  Triplett            argues, that he  alleged, and the district  court should have            considered,  facts  in his  own  motion  for partial  summary            judgment that specified the  defendants' personal role in the            alleged deprivation of his rights,  he would not be  entitled            to relief in this   1983  action, based on those "facts."  He            claims that he was unlawfully deprived  of his television set            without  being afforded predeprivation  due process, pursuant            to  a policy  announced  by defendant  Pepe  and condoned  by            defendant Dubois, that authorizes the removal of a television            set from  the cell of an  inmate who is on  "awaiting action"            status  for  receipt  of  a disciplinary  report.    Triplett            contends  that  this  policy  is unlawful  as,  according  to            Triplett, there is no statutory  authorization for it.   Even            assuming,  arguendo,  that   Triplett  is  correct   in  this                       ________            contention,1  he, nonetheless,  would  not  prevail.    "[A]n                       1                                            ____________________               1But  see Mass. Gen. L.  ch. 124,    1(q) (authorizing the               1________            commissioner of  correction to make and  promulgate necessary            rules and regulations incident to  the exercise of his powers            and  the  performance  of  his  duties  including  rules  and            regulations  regarding discipline); 103 CMR 430.21(a) (giving            the  superintendent or  his  designee authority  to place  an            inmate  under  investigation  for  a   possible  disciplinary            offense on awaiting action  status, which may include  a more            restrictive  confinement); and  103 CMR  421.20(5) (providing            that, in a segregated  unit, a cell may include  a television            but it shall  be subject  to procedures for  its removal  and                                         -3-            unauthorized intentional deprivation  of property by a  state            employee does  not constitute  a violation of  the procedural            requirements  of the  Due  Process Clause  of the  Fourteenth            Amendment if a meaningful postdeprivation remedy for the loss            is available."  Hudson  v. Palmer, 468 U.S. 517,  533 (1984);                            ______     ______            see also Watson v.  Caton, 984 F.2d 537, 541 (1st  Cir. 1993)            ________ ______     _____            (per curiam) (holding that  there is no  legal basis for a               1983 action where  the allegation  is that the  action was  a            deviation from, and not a reflection of, an established state            procedure).     Triplett  makes  no   allegation  here   that            Massachusetts affords no adequate postdeprivation remedy, and            that  ends  the matter.    See  Romero-Barcelo v.  Hernandez-                                       ___  ______________     __________            Agosto,  75 F.3d 23, 33 (1st Cir. 1996) (declining to address            ______            whether an adequate postdeprivation remedy is available under            state law  absent either  any allegation or  argumentation on            the point by the plaintiff).                 Similarly,  insofar  as  Triplett's  complaint  might be            construed as alleging a violation of substantive due process,            he  would  not prevail.   Triplett  does  not (and  could not            reasonably) contend that an inmate has a constitutional right            to possess a television set in his cell and the fact that the            defendants  removed  Triplett's television  set prior  to his            disciplinary hearing for possessing a razor blade in his cell            simply does  not rise to  the level of  "conscience shocking"                                            ____________________            return).                                         -4-            conduct.   See Brown v.  Hot, Sexy &  Safer Prods.,  Inc., 68                       ___ _____     ________________________________            F.3d 525, 531  (1st Cir. 1995) (outlining two  theories under            which a plaintiff may bring a substantive due process claim -            - demonstration of a deprivation of an identified liberty  or            property interest  protected by  the Fourteenth Amendment  or            state's conduct that "shocks  the conscience"), cert. denied,                                                            ____________            116 S. Ct. 1044 (1996).                 The district court order granting the defendants' motion            to dismiss is                 Affirmed.                 _________                                         -5-
