MEMORANDUM AND ORDER
G. PATRICK MURPHY, District Judge.
Plaintiff Robert Hogan, who is currently incarcerated at the United States Penitentiary at Marion ("Marion"), brings this action seeking relief both under the Federal Tort Claims Act, ("FTCA"), 28 U.S.C. § 1346(b); § 2671 et seq., and for alleged violations of his constitutional rights by a person acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A.
Plaintiff claims that on June 21, 2012, he was placed in the SHU (Special Housing Unit) after he was assaulted (Doc. 1, p. 5). His personal property was removed from his former cell, inventoried, and placed in clear plastic bags, in preparation for delivery to the SHU property officer. These items consisted of books, textbooks, papers, and art materials, which Plaintiff values at $1, 632.18 (Doc. 1, pp. 5-6; Doc. 1-1, p. 10). Defendant Blair (a correctional officer) was on duty the next morning (June 22, 2012), and was responsible for the correct handling of Plaintiff's property. However, instead of sending Plaintiff's property to the SHU, Defendant Blair "maliciously and knowingly" sent all of it for disposal, and it was destroyed (Doc. 1, p. 5). Plaintiff asserts these actions unconstitutionally deprived him of his property without due process.
Plaintiff filed a claim pursuant to the FTCA, which was denied on April 17, 2013 (Doc. 1-1, p. 5). The letter of denial stated that Plaintiff's claim had been considered under 31 U.S.C. § 3723 but was rejected.
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from an immune defendant.
Count 1 - Federal Tort Claims Act
Plaintiff's claim under the FTCA for deprivation of his property has been foreclosed by the Supreme Court's decision in Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18 (2008). In relevant part, the FTCA allows for "claims against the United States, for money damages... for injury or loss of property... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." § 1346(b)(1). The FTCA waives the United States' sovereign immunity to being sued in federal court, and may apply in the prison context where federal prison employees commit a tort against an inmate. Ali, 552 U.S. at 217-18. However, there are certain exceptions to this coverage. Section 28 U.S.C. § 2680(c) states that the FTCA immunity waiver does not apply to "[a]ny claim arising in respect of... the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer."
The Supreme Court in Ali held that this language applies to instances in which an inmate attempts to sue the United States where a federal prison has lost his or her property. Ali, 552 U.S. at 227-28. The Court determined that Federal Bureau of Prisons employees are "other law enforcement officers" under the FTCA, which means that prisoners whose property is intentionally "detained" by Federal Bureau of Prisons employees cannot bring suit under the FTCA. Ali, 552 U.S. 214. See also Parrott v. U.S., 536 F.3d 629, 635-36 (7th Cir. 2008) ("detention" of property includes situation where inmate's property is confiscated and mailed outside the prison; § 2680(c) bars FTCA claim).
Plaintiff seeks compensation for the destruction of various property items by Defendant Blair, who is a federal officer. Under Ali, the FTCA is not an available remedy. Therefore, the FTCA claim (Count 1) and Defendant United States of America shall be dismissed for failure to state a claim upon which relief may be granted.
Count 2 - Deprivation of Property without Due Process
The Supreme Court has held that deprivation of an inmate's property does not violate the due process clause if the government provides an adequate remedy, whether that deprivation is negligent or intentional. Hudson v. Palmer, 468 U.S. 517, 536 (1984). Before the Ali decision, the availability of a claim under the FTCA would have precluded a due process claim, because the FTCA formerly provided an adequate remedy to address the negligent deprivation of personal property. See Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003) (discussing United States v. Muniz, 374 U.S. 150 (1963)).
After Ali, however, the FTCA is unavailable as a remedy for inmates alleging deprivation of their personal property. Hudson would seem to indicate that such a claim raised by a federal inmate could be brought in a Bivens action pursuant to the due process clause. See Hudson v. Palmer, 468 U.S. 517, 536 (1984) (deprivation of an inmate's property does not violate the due process clause where there exists an adequate post-deprivation remedy). At this point, it is not entirely clear whether the Supreme Court meant to open up this avenue to federal inmates. In addition, if an alternative remedy available to Plaintiff is found to be "adequate, " then there may have been no due process ...