Paul Jackson v. M. Maes, et al

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Paul Jackson v. M. Maes, et al

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Case: 09-11238

Document: 00511210826

Page: 1

Date Filed: 08/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-11238 S u m m a r y Calendar August 20, 2010 Lyle W. Cayce Clerk

P A U L RAY JACKSON, also known as Paul R. Jackson, also known as James John son , P la in t if f -A p p e lla n t v. M . MAES; D. INGLE; J. WHEAT, D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 2:09-CV-207

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* P a u l Ray Jackson, Texas prisoner # 614451, appeals from the dismissal of h is in forma pauperis (IFP) 42 U.S.C. § 1983 civil rights suit claiming that the n a m e d defendant prison employees destroyed his personal property; the district c o u r t dismissed the suit as frivolous. He argues that the evidence will show that t h e defendants intentionally destroyed the property in question.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-11238

Document: 00511210826 Page: 2 No. 09-11238

Date Filed: 08/20/2010

W e review the dismissal as frivolous for an abuse of discretion. See Norton v . Dimazana, 122 F.3d 286, 291 (5th Cir. 1997; 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1 9 1 5 A (b )(1 ). To the extent that Jackson may have raised claims based upon n e g lig e n c e or failure to comply with prison procedures in his complaint, he has a b a n d o n e d them on appeal. See Brinkmann v. Dallas County Deputy Sheriff A b n e r , 813 F.2d 744, 748 (5th Cir. 1987). He does not argue that the district c o u r t erred by finding (1) that the defendants' actions, at most, constituted a r a n d o m and unauthorized deprivation or (2) that the Texas tort of conversion p r o v id e s an adequate post-deprivation remedy. See Hudson v. Palmer, 468 U.S. 5 1 7 , 533 (1984); Parratt v. Taylor, 451 U.S. 527, 541-44 (1981), overruled in part o n other grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Murphy v . Collins, 26 F.3d 541, 543-44 (5th Cir. 1994). The Parratt/Hudson doctrine a p p lie s even when a prisoner alleges that the deprivation of property by prison o ffic ia ls was intentional. Hudson, 468 U.S. at 533. Accordingly, Jackson's suit is foreclosed by the Parratt/Hudson doctrine, and the district court did not a b u s e its discretion by dismissing it as frivolous. J a c k s o n 's appeal is without arguable merit and is frivolous. See Howard v . King, 707 F.2d 215, 220 (5th Cir. 1983). The district court's dismissal of his c o m p la in t and this court's dismissal of this appeal as frivolous combined count a s two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 1 0 3 F.3d 383, 387 (5th Cir. 1996). Jackson is cautioned that if he accumulates t h r e e strikes, he will no longer be allowed to proceed IFP in any civil action or a p p e a l filed while he is incarcerated or detained in any facility unless he is u n d e r imminent danger of serious physical injury. See § 1915(g). J a c k s o n 's motion for appointment of counsel is DENIED, and his appeal is DISMISSED as frivolous pursuant to 5TH CIR. R. 42.2.

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