James Johnson v. Dennis Wallich

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 29, 2014 *
Decided September 30, 2014
Before
RICHARD D. CUDAHY, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐3565
JAMES JOHNSON,
Plaintiff–Appellant,
v.
DENNIS WALLICH, et al.,
Defendants–Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 13‐CV‐00614
Lynn Adelman,
Judge.
ORDER
Wisconsin inmate James Johnson appeals the dismissal of his complaint under 42
U.S.C. § 1983 alleging due process violations in connection with the destruction of his
vehicle, which had been stolen but then recovered and taken into possession by the
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* The defendants were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we
have concluded that oral argument is unnecessary. See FED . R. A PP . P. 34(a)(2)(c).

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No. 13‐3565 Page 2
Milwaukee Police Department. The district court concluded that Johnson’s complaint
did not state a due process claim because he had an adequate state post‐deprivation
remedy. We affirm.
In his complaint Johnson explained the circumstances that, he alleged, led to his
being deprived of his property without procedural due process. As set forth in the
complaint, Johnson reported to the Milwaukee police that his car had been stolen. Two
months later the police notified him that Officer Dennis Wallich had identified and
recovered the car during a traffic stop. Johnson collected his keys from the police and
went to retrieve his car from the site of the stop, where the police told him the car had
been parked and could be picked up. It was no longer there. After looking for his car for
hours and contacting tow lots for days afterward, Johnson filed another stolen‐vehicle
report. Three months later, he heard back from Milwaukee police, who informed him
that they found his car in Zion, Illinois, stripped of its major parts and in “salvage
condition.”
A year later Johnson sued Wallich, seeking $16,000 in damages. He alleged that
Wallich violated his due process rights by not promptly returning his car after
recovering it in the traffic stop. The district court screened the complaint, 28 U.S.C.
§ 1915A(b)(1), and dismissed it for failure to state a claim because Wisconsin’s
post‐deprivation remedies for redressing the missing property satisfied due process.
Johnson challenges the district court’s conclusion that he failed to state a due
process claim. He argues that Wallich “released” the vehicle to a tow lot in Zion,
Illinois, and so “knowingly and voluntarily refused to return” it. If Wallich did as
Johnson alleged, and for purposes here we assume that he did, then the district court
properly characterized the officer’s actions as random and unauthorized, and the
destruction of Johnson’s property did not result from constitutionally infirm
procedures. When a state official’s conduct is random and unauthorized, due process
requires only that an adequate post‐deprivation remedy exists. See, e.g., Zinerman v.
Burch, 494 U.S. 113, 128–30 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984); Leavell v.
Illinois Dep’t of Natural Resources, 600 F.3d 798, 805 (7th Cir. 2010).
By statute, Wisconsin affords procedures that can address random, unauthorized
deprivations of property by state officers and officials. It provides tort remedies for
those whose property has been converted or damaged by another. W IS. STAT. §§ 893.35
(action to recover personal property after wrongful taking, conversion, or wrongful
detention), 893.51 (action for damages resulting from wrongful taking, conversion, or

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No. 13‐3565 Page 3
wrongful detention of personal property), 893.52 (action for damages from injury to
property); see also Hamlin v. Vaudenberg, 95 F.3d 580, 585 (7th Cir. 1996)
(inmate‐complaint review system, certiorari review under Wisconsin law, and
Wisconsin tort remedies against prison officials are adequate remedies for deprivation
of good‐time credits); Wolf‐Lillie v. Sonquist, 699 F.2d 864, 871 (7th Cir. 1983) (Wisconsin
tort remedies are adequate for deprivation of property resulting from sheriff’s execution
of outdated writ of restitution). Because Johnson does not suggest that the loss of his car
resulted from some established procedure or that Wisconsin’s post‐deprivation
remedies were inadequate to redress the damage to his car, he failed to state a due
process claim.
Johnson also argues that the district court should have allowed him to amend his
complaint to correct any deficiencies. But Johnson did not request leave to amend his
complaint, and the district court cannot abuse its discretion by denying leave to amend
if Johnson never sought it. James Cape & Sons Co. v. PCC Constr. Co., 453 F.3d 396, 400–01
(7th Cir. 2006); Carl Sandburg Village Condo. Ass’n No. 1 v. First Condo. Dev. Co., 758 F.2d
203, 206 n.1 (7th Cir. 1985).
AFFIRMED.

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