Wael Albudairy v. C.O. DEITER, Correctional Officer at SCI-Dallas

DLD-38 NOT PRECEDENTIAL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

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The District Court also reviewed a Fourteenth Amendment claim involving1
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.
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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. The first claim is that1
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

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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

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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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