        IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
                             AT JACKSON

             _______________________________________________________

                                    )
FRED E. DEAN,                       )     Lauderdale County Circuit Court
                                    )     No. 4881
   Plaintiff/Appellant.             )
                                    )
VS.                                 )     C.A. No. 02A01-9704-CV-00077
                                    )
DONAL CAMPBELL, et al.,             )

   Defendants/Appellees.
                                    )
                                    )
                                                         FILED
                                    )
                                                    July 17, 1997
______________________________________________________________________________

From the Circuit Court of Lauderdale County at Ripley.   Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
Honorable Joseph H. Walker, Judge



Fred E. Dean, Pro Se



John Knox Walkup, Attorney General and Reporter,
Stephanie R. Reevers, Assistant Attorney General
Attorneys for Defendants/Appellees.



OPINION FILED:

AFFIRMED AND REMANDED


                                           FARMER, J.

CRAWFORD, P. J., W.S.: (Concurs)
LILLARD, J.: (Concurs)
               Fred E. Dean, an inmate in custody of the Tennessee Department of Corrections

(TDOC) sued Donal Campbell, Robert Conley, Corporal Lane and Officer Maxwell for monetary

damages in a “Complaint for Violation of Civil Rights Under 42 U.S.C. § 1983.”1 The complaint

alleges that when Mr. Dean was transferred from one correction facility to another, several items of

personal property were missing, to-wit: sweat pants and shirt, plastic bowl, some cosmetics and a

prayer rug. He alleges that after writing Commissioner Campbell, he was notified prayer rugs must

be no larger than 3 x 5 feet; with a fire retardant label and nonskid back. The complaint alleges that

prayer rugs are not made with a nonskid back or fire retardant label. Thus, he alleges that he has

been deprived of a prayer rug.



               Defendants filed a motion to dismiss the complaint pursuant to Rule 12.02 T.R.C.P.

for failure to state a claim upon which relief can be granted and for lack of jurisdiction. The motion

was granted and Plaintiff appeals. In considering a Rule 12.02(6) motion to dismiss, we are required

to take the allegations of the complaint as true and to construe the allegations liberally in favor of

the plaintiff. Pemberton v. American Distilled Spirits Co., 664 S.W.2d 690, 691 (Tenn. 1984). It

admits the truth of all relevant and material affirmance contained in the complaint but asserts that

such facts do not constitute a cause of action. Humphries v. West End Terrace, Inc., 795 S.W.2d

128 (Tenn. App. 1990). Mr. Dean alleges that he was deprived of his property without due process

in violation of the Fourteenth Amendment and that his prayer rug was confiscated because it did not

meet the Department’s standards in violation of the First Amendment and the Religious Freedom

Restoration Act (RFRA), 42 U.S.C. § 2000bb, et seq.



               No state shall deprive any person of property without due process of law. U.S. Const.

amend. XIV, § 1. In Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985), an inmate at the Tennessee

State Prison sued to procure the return of property which had been removed from his cell while he

was in the hospital. In affirming the district court’s dismissal, the 6th Circuit noted that the Supreme

Court held in Parratt v. Taylor, 451 U.S. 527, 543, (1981),2 that a prisoner’s loss of property due to


       1
       Donal Campbell is the commissioner of the TDOC, Robert Conley is identified in the
complaint as warden at WTHSF and Corporal Lane and Officer Maxwell identified as property
room officers at WTHSF.
       2
       This case was subsequently overruled by Daniels v. Williams, 474 U.S. 327 (1986),
wherein the court stated:
the negligence of a state employee was not a violation of due process if the state afforded a means

to resolve the alleged loss. The court noted that Parratt was followed by Vicory v. Walton, 721 F.2d

1062 (6th Cir. 1983), cert. den., 469 U.S. 834 (1984), which held that a § 1983 action does not lie

if state law provides an “immediate corrective process in its courts,” by which the plaintiff could

recover his property. Vicory, 721 F.2d at 1064. The court held that the State of Tennessee has

provided adequate procedures to assure the return of items either negligently or intentionally

converted, citing T.C.A. § 9-8-207, [now T.C.A. § 9-8-307(a)(1)(F)], and in the absence of resort

to state remedies, a federal court may not assert jurisdiction. T.C.A. § 9-8-307(a)(1)(F) provides that

the commission or each commissioner sitting individually has exclusive jurisdiction to determine

all monetary claims against the state for negligent care, custody or control of personal property.



               Congress shall make no law prohibiting the free exercise of religion. U.S. Const.

amend. I. By reason of the due process clause of the Fourteenth Amendment, the provisions of this

amendment which forbid congressional legislation with respect to the establishment of religion is

equally applicable to state and local governmental bodies. Wiley v. Franklin, 468 F.Supp. 133, 143

(E.D. Tenn.1979), modified on other grounds, 474 F.Supp. 525 (E.D. Tenn. 1979); 497 F.Supp. 390

(E.D. Tenn. 1980); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).



               Lawful incarceration brings about the necessary withdrawals or limitations of many

privileges and rights. A prison inmate retains those First Amendment rights that are not inconsistent

with his status as a prisoner or with the legitimate penological objectives of the corrections system.

Challenges to restrictions on those rights must be analyzed in terms of the legitimate policies and



                In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420
       (1981), a state prisoner sued under 42 U.S.C. § 1983, claiming that prison
       officials had negligently deprived him of his property without due process of law.
       After deciding that § 1983 contains no independent state-of-mind requirement, we
       concluded that although petitioner had been “deprived” of property within the
       meaning of the Due Process Clause of the Fourteenth Amendment, the State’s
       postdeprivation tort remedy provided the process that was due. Petitioner’s claim
       in this case, which also rests on an alleged Fourteenth Amendment “deprivation”
       caused by the negligent conduct of a prison official, leads us to reconsider our
       statement in Parratt that “the alleged loss, even though negligently caused,
       amounted to a deprivation.” Id., at 536-537, 101 S.Ct., at 1913. We conclude
       that the Due Process Clause is simply not implicated by a negligent act of an
       official causing unintended loss of or injury to life, liberty, or property.

Daniels, 474 U.S. at 328.
goals of the penal system. Pell v. Procunier, 417 U.S. 817(1974).



                In McClaflin v. Peace, 739 F.Supp. 537 (D. Or. 1990), an inmate brought a § 1983

action alleging that the correctional institution deprived him and restricted his rights to practice his

religion by not allowing him, among other things, a rosary. The court noted that the rosary is not

essential to the practice of the inmate’s religion of Catholicism. In the present case, Mr. Dean’s

complaint does not allege that a prayer rug is essential or a central tenet to the practice of his

religion.



                Neither a state nor its officials acting in their official capacities are “persons” under

§ 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989). There suit was filed in state

court against the Michigan Department of State Police and its director. Subsequent to review by the

Court of Appeals and the Supreme Court of Michigan, the U.S. Supreme Court held that neither a

state nor its officials acting in their official capacities are “persons” under § 1983. The state court

judge ruled for petitioner, finding that both respondents were “persons” under § 1983. The state

court of appeals vacated the judgment against the department, holding that a state is not a person

under § 1983 and remanded for a determination of the director’s possible immunity. The state

supreme court affirmed in part and reversed in part, agreeing that the state is not a person under §

1983, but holding that a state official acting in his or her official capacity also is not such a person.

That judgment was affirmed. The defendants in the present case were clearly sued in their official

capacities.



                Mr. Dean contends that the confiscation of the prayer rug is violative of the Religious

Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1.3 However, the Supreme Court of the

United States recently held the RFRA to be unconstitutional. City of Boerne v. Flores, No. 95-2074,

1997 WL 345322, (U.S. June 25, 1997). There the Court said:



        3
         (a) In general. Government shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general applicability, except as provided in
subsection (b).
(b) Exception. Government may substantially burden a person’s exercise of religion only if it
demonstrates that application of the burden to the person --
        (1) is in furtherance of a compelling governmental interest; and
        (2) is the least restrictive means of furthering that compelling governmental interest.
                       It is for Congress in the first instance to “determin[e] whether
               and what legislation is needed to secure the guarantees of the
               Fourteenth Amendment,” and its conclusions are entitled to much
               deference. Katzenbach v. Morgan, 384 U.S., at 651, 86 S.Ct., at
               1723-1724. Congress’ discretion is not unlimited, however, and the
               courts retain the power, as they have since Marbury v. Madison, to
               determine if Congress has exceed its authority under the Constitution.
               Broad as the power of Congress is under the Enforcement Clause of
               the Fourteenth Amendment, RFRA contradicts vital principles
               necessary to maintain separation of powers and the federal balance.
               The judgment of the Court of Appeals sustaining the Act’s
               constitutionality is reversed.



City of Boerne, 1997 WL 345322, at *16.



               For the foregoing reasons, we believe the trial court was correct in granting the

defendants’ motion to dismiss. The judgment of the trial court is affirmed and the costs of this

appeal are taxed to Mr. Dean, for which execution may issue if necessary.



                                              ____________________________________
                                              FARMER, J.



______________________________
CRAWFORD, P.J., W.S. (Concurs)



______________________________
LILLARD, J. (Concurs)
