Kontos v. Wheeler

29 F.3d 627 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action. Apostolos KONTOS, Appellant, v. Joseph WHEELER, official of Southeastern Minnesota Multi-County Housing and Redevelopment Authority; John Doe, official of Southeastern Minnesota Multi-County Housing and Redevelopment Authority, Appellees. No. 93-2382MN. United States Court of Appeals, Eighth Circuit. Submitted: May 13, 1994. Filed: July 6, 1994. Before RICHARD S. ARNOLD, Chief Judge, ROSS, Senior Circuit Judge, and McMILLIAN, Circuit Judge. PER CURIAM. [1] This is an action under 42 U.S.C. Sec. 1983 against a number of defendants seeking damages for harm the plaintiff allegedly suffered when he moved into a public housing building in Wabasha, Minnesota. The District Court,1 acting on the recommendation of a United States magistrate judge,2 granted summary judgment for the defendants. [2] We affirm. The complaint was correctly dismissed under 28 U.S.C. Sec. 1915(d) as to defendants not personally involved in the storage of the plaintiff's property. See Rizzo v. Goode, 423 U.S. 362, 376-77 (1976) (liability under Sec. 1983 requires that defendant have had affirmative part in alleged wrongful action). Moreover, the gravamen of plaintiff's complaint is that he was deprived of property without due process of law. It is fatal to this claim that Minnesota provides an adequate state post-deprivation remedy for loss of property. See Hubenthal v. County of Winona, 751 F.2d 243, 246 (8th Cir. 1984) (per curiam); Minn. Stat. Sec. 466.02 (1977). [3] We express our thanks to appointed counsel for appellant for his diligent service. [4] Affirmed. Footnotes [1] The Hon. James M. Rosenbaum, United States District Judge for the District of Minnesota [2] The Hon. J. Earl Cudd, United States Magistrate Judge for the District of Minnesota