                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-5-2008

Wael Albudairy v. Deiter
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2761




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DLD-38                                                         NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 08-2761


                                WAEL ALBUDAIRY,
                                           Appellant

                                           v.

                   C.O. DEITER, Correctional Officer at SCI-Dallas;
                   SGT. HIGGINS, Property Sergeant at SCI-Dallas;
                    Lt. MILLER, Security Lieutenant at SCI-Dallas.


                    On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                               (D.C. Civil No. 07-00702)
                    District Judge: Honorable Richard P. Conaboy


         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  November 21, 2008


               Before: BARRY, AMBRO AND SMITH, Circuit Judges

                           (Opinion filed: December 5, 2008)


                                       OPINION




PER CURIAM

    Wael Albudairy, a state prisoner at SCI-Dallas, filed this pro se action in the
Middle District of Pennsylvania against three prison officers (“Appellees”), alleging

violations of his civil rights under 42 U.S.C. § 1983. Appellees moved to dismiss

Albudairy’s amended complaint for failure to state a claim upon which relief can be

granted under Fed. R. Civ. P. 12(b)(6). On May 16, 2008, the District Court adopted the

report and recommendation of Magistrate Judge Malachy E. Mannion and granted

Appellees’ motion to dismiss. For the reasons that follow, we will affirm.

       Albudairy makes two claims in his amended complaint.1 The first claim is that

Appellee C.O. Deiter violated his Eighth Amendment rights by forcing Albudairy to share

a cell with a “self proclaimed Salafi Muslim” because “Salafi Muslims hate me and my

people.” On this claim, Albudairy requests “Ten Million ($10,000,000) dollars to prevent

this kind of incident from ever happening again.” The second claim is that Appellees Sgt.

Higgins and Lt. Miller violated his Eighth Amendment rights by removing and failing to

return his personal property following Albudairy’s move to a different cell. For this claim

Albudairy seeks three hundred dollars in compensation.

       The Magistrate Judge correctly analyzed Albudairy’s first Eighth Amendment

claim under the Supreme Court’s standard for “deliberate indifference.” See Farmer v.

Brennan, 511 U.S. 825, 837-39 (1994) (no Eighth Amendment liability for prison




   1
     The District Court also reviewed a Fourteenth Amendment claim involving
Albudairy’s placement in restricted prison housing. We do not find such a claim alleged
in any of Albudairy’s letters or substantive filings with the District Court, and therefore
do not address its merits in this opinion.

                                             2
officials unless they know of and disregard an excessive risk to an inmate’s health or

safety). We agree with the Magistrate Judge that Albudairy’s decision to assault his new

cell-mate fatally undercuts his claim that he was subjected to cruel and unusual

punishment by virtue of the cell assignment. Indeed, while the Eighth Amendment

confers a duty upon prison officials “to protect prisoners from violence at the hands of

other prisoners,” id. at 833, it by no means enables or shields unprovoked acts of

aggression.

       As for Albudairy’s second claim regarding his missing personal property, the

Magistrate Judge correctly found that the claim was foreclosed by the Supreme Court’s

decision in Hudson v. Palmer, 468 U.S. 517 (1984). There, the Court held that “an

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.” Id. at 533.

In his original complaint, Albudairy admits that there is a grievance procedure available

at his place of incarceration, but that he has failed to use it regarding the claims asserted.

In addition, Albudairy does not suggest that state and common-law remedies available to

redress the alleged confiscation of personal property are somehow inadequate. See id. at

530, 535. Thus, it cannot be said that Albudairy has no “meaningful postdeprivation

remedies” in lieu of § 1983.

       Finally, the District Court’s failure to notify Albudairy of his ability to amend his



                                               3
already amended complaint following the Appellees’ motion to dismiss does not change

the result in this case. “When a plaintiff does not seek leave to amend a deficient

complaint after a defendant moves to dismiss it, the court must inform the plaintiff that he

has leave to amend within a set period of time, unless amendment would be inequitable or

futile.” Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (emphasis in

original). Based on the content of Albudairy’s substantive filings in the District Court, as

well as the thorough order from the Magistrate Judge outlining the requirements for

Albudairy’s first amended complaint, we find that any subsequent notification per

Grayson regarding amendment would have been an exercise in futility. Therefore,

because we agree with the District Court that Albudairy’s amended complaint fails to

state a claim upon which relief can be granted, we affirm its order granting Appellees’

motion to dismiss under Fed. R. Civ. P. 12(b)(6).




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