Michael Garrett v. William Stephens, et al

Filing

UNPUBLISHED OPINION FILED. [16-40354 Affirmed] Judge: EGJ, Judge: JES, Judge: JEG. Mandate pull date is 02/02/2017 [16-40354]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40354
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
January 12, 2017
Lyle W. Cayce
Clerk

MICHAEL GARRETT,
Plaintiff–Appellant,
versus
WILLIAM STEPHENS, Individual capacity;
LORIE DAVIS, Professional capacity; CANDACE MOORE; KEN PAXTON,
Defendants–Appellees.

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:15-CV-403

Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Michael Garrett, Texas prisoner # 697364, appeals the dismissal of his
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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42 U.S.C. § 1983 complaint as frivolous and for failure to state a claim under
28 U.S.C. §§ 1915A and 1915(e)(2)(B). We review the dismissal de novo. See
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
Garrett does not challenge the district court’s determination that the
confiscation of his property was not cruel and unusual punishment under the
Eighth Amendment. Therefore, that claim is abandoned. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
Garrett claims that Candace Moore filed disciplinary charges against
him and confiscated his property in retaliation for his filing of administrative
grievances and his attempt to add her as a defendant in another lawsuit. But
Garrett does not address the district court’s reliance on Heck v. Humphrey,
512 U.S. 477 (1994), to dismiss this claim. By failing to address the legal basis
of the district court’s decision, it is the same as if Garrett had not appealed.
See Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
Garrett contends that the disciplinary officer violated his due-process
rights by not allowing him to call witnesses and present evidence at the disciplinary hearing. The record belies this claim, however, and shows that prison
officials satisfied all due-process requirements.

See Wolff v. McDonnell,

418 U.S. 539, 564–66 (1974). Because the claim is not plausible on its face, the
court did not err in dismissing it under §§ 1915(e)(2)(B) and 1915A(b)(1). See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Relying on the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), Garrett asserts that the confiscation of his property by Moore
forced him to modify his daily religious practices. He has failed to state a claim
under RLUIPA because he has not alleged a government regulation or policy
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infringing his right to free exercise of religion. See Adkins v. Kaspar, 393 F.3d
559, 567 (5th Cir. 2004). Moore did not seize Garrett’s religious items under a
state policy but, instead, as part of an investigation into an alleged violation of
state law. Because this claim has no arguable basis in the law and is not plausible on its face, the court did not err in dismissing it under §§ 1915(e)(2)(B) and
1915A(b)(1). See Iqbal, 556 U.S. at 678; Morris v. McAllester, 702 F.3d 187,
189 (5th Cir. 2012).
Garrett maintains that the confiscation of his property violated his dueprocess process rights and that the district court erroneously applied the
Parratt/Hudson doctrine. He asks this court to exercise supplemental jurisdiction over this claim. Under the Parratt/Hudson doctrine, the deprivation
of a constitutionally protected property interest caused by a state actor’s random, unauthorized conduct does not give rise to a § 1983 procedural-due-process claim unless the state fails to provide an adequate post-deprivation remedy. Allen v. Thomas, 388 F.3d 147, 149 (5th Cir. 2004) (citing Parratt v. Taylor, 451 U.S. 527, 541–44 (1981), overruled in part by Daniels v. Williams,
474 U.S. 327 (1986), and Hudson v. Palmer, 468 U.S. 517, 533 (1984)).
Texas’s tort of conversion provides adequate state post-deprivation remedies to prisoners who claim due-process violations based on deprivation of
their property. See Murphy v. Collins, 26 F.3d 541, 543–44 (5th Cir. 1994); see
also Peters v. Klevenhagen, 1995 WL 581581, at *1 (5th Cir. 1995) (unpublished); TEX. GOV’T CODE §§ 501.007, 501.008. The circumstances do not call
for the exercise of supplemental jurisdiction. See 28 U.S.C. § 1367(c)(3); see
also Rhyne v. Henderson Cty., 973 F.2d 386, 395 (5th Cir. 1992).
Garrett contends that the seizure of his property has impeded his right
to access the courts. This claim is directly belied by the fact that Garrett has
filed several pro se suits and accompanying appeals. Given the lack of evidence
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that he has been denied access, Garrett has not shown that the district court
erred in dismissing this claim. See Iqbal, 556 U.S. at 678; Morris, 702 F.3d
at 189.
Addressing the ruling that he cannot sue the defendants in their official
capacities for money damages, Garrett claims that he should be able to sue
them in their individual capacities and that the record evidence establishes
that their conduct violated his constitutional rights. As noted in the magistrate judge’s recommendation, Garrett did not specifically state whether he
was suing Moore and Stephens in their individual or official capacities, so we
assume he is pursuing both avenues. The district court determined only that
Garrett could not sue the defendants in their official capacities for money damages under the Eleventh Amendment; it made no adverse ruling regarding
Garrett’s ability to sue them in their individual capacities. Given that he complains of a determination that does not exist, Garrett has not shown error.
Garrett posits that William Stephens breached his affirmative duty as
former director of the Texas Department of Criminal Justice (“TDCJ”) when
he ignored Garrett’s administrative grievances.

Garrett contends that

Stephens’s deliberate indifference to those grievances violated the Eighth
Amendment.
There is no evidence that Stephens encouraged or was complicit in the
filing of allegedly retaliatory actions by Moore against Garrett. Garrett also
does not suggest that his own lack of training resulted in Moore’s filing of the
contraband charges. Moreover, Garrett does not have a constitutional right to
have grievances resolved in his favor or to have his claims reviewed per a grievance process that is responsive to his perceived injustices; thus, the denials of
his grievances do not implicate his constitutional rights or give rise to a § 1983
claim against Stephens. See Geiger, 404 F.3d at 374. Prison officials reviewed
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each of Garrett’s grievances and, therefore, he fails to show deliberate indifference by Stephens in his attention to those matters. See Roberts v. City of
Shreveport, 397 F.3d 287, 292 (5th Cir. 2005).
Garrett asserts that Texas Attorney General Ken Paxton is responsible
for the alleged retaliatory acts of Moore because Paxton issued a memorandum
to the prison authorizing the disciplinary action. That memorandum is a directive from the TDCJ to the Director of Corrections Law explaining the measures
that a state employee may pursue when an offender threatens to, or already
has, filed fraudulent liens against that employee. Garrett has not established
that that explanatory document resulted in retaliatory acts by Moore. It follows that the district court did not err in dismissing that contention for failure
to state a claim and/or as frivolous. See Iqbal, 556 U.S. at 678; Morris, 702 F.3d
at 189.
Garrett has not shown that the district court erred in dismissing his suit
as frivolous and for failure to state a claim. See Morris, 702 F.3d at 189. As a
result, the judgment is AFFIRMED. We caution Garrett that the dismissal
counts as a strike under § 1915(g), see Adepegba v. Hammons, 103 F.3d 383,
388 (5th Cir. 1996), and that once he accumulates three strikes, he may not
proceed in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g).

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