Stewart v. Gutierrez et al

Filing 15

ORDER OF DISMISSAL. 10 MOTION Order to Respond to Plaintiff -1983. All pending motions are DENIED. Case terminated on November 9, 2016(Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ERIC D. STEWART,

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Plaintiff,
VS.
ERNEST GUTIERREZ, et al.,
Defendants.

November 09, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. 3:15-CV-175

ORDER OF DISMISSAL
Eric D. Stewart (TDCJ #01209188) has filed a complaint under 42 U.S.C. § 1983,
alleging that his right to procedural due process was violated when some of his property
was lost during a transfer from one prison unit to another. The Court has examined
Stewart’s complaint pursuant to 28 U.S.C. § 1915A and will now dismiss his claims
without prejudice to his right to sue in state court.
I.

BACKGROUND

Stewart alleges that he was transferred from the Garza Unit in Bee County to the
Darrington Unit in Brazoria County on April 22, 2014 (Dkt. 1 at p. 7). Not all of his
property made it to Darrington, however; some food, workout clothes, and toiletry items
came up missing (Dkt. 1 at pp. 7, 13). Stewart pursued administrative remedies through
the prison grievance system and was offered a property settlement of $40.00 (Dkt. 1 at
pp. 7–8). See TEX. GOV’T CODE §§ 501.007, 501.008 (providing that an inmate may
recover up to $500.00 on a claim that the prison system lost or damaged the inmate’s
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personal property). Believing the missing property to be worth $120.75, Stewart declined
the $40.00 offer and filed this lawsuit (Dkt. 1 at pp. 7–8).
II.

LOST PROPERTY AND PROCEDURAL DUE PROCESS

A random and unauthorized deprivation of property by state officials, whether
negligent or intentional, does not rise to the level of a constitutional violation or a
cognizable claim under Section 1983 if state law provides an adequate post-deprivation
remedy. Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). The burden is on the
plaintiff to show that the State’s post-deprivation remedies are inadequate. Id. Even
leaving aside the property-loss remedies provided by the Government Code, the tort of
conversion generally constitutes an adequate remedy in Texas. Murphy v. Collins, 26
F.3d 541, 543 (5th Cir. 1994).
The ability to sue for damages in state court forecloses Stewart’s Section 1983
claim. Thompson v. Steele, 709 F.2d 381, 383 (5th Cir. 1983). The Court will DISMISS
Stewart’s claims without prejudice to his right to sue in state court. See Loftin v.
Thomas, 681 F.2d 364, 364–65 (5th Cir. 1982). All pending motions are DENIED.
The Clerk of this Court shall send a copy of this Order to the parties.
SIGNED at Galveston, Texas, this 9th day of November, 2016.

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George C. Hanks Jr.
United States District Judge

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