Atwood v. Phillips et al
MEMORANDUM AND ORDER. Plaintiff's federal claims pursuant to 42 U.S.C. § 1983 are DISMISSED with prejudice as for failure to state a claim for which relief may be granted pursuant to 28 U.S.C. 1915A(b). Plaintiff's Motion to Proceed In Forma Pauperis 2 is GRANTED, and Plaintiff is assessed an initial filing fee of $4.00. Thereafter, Plaintiff shall pay the full filing fee of $350.00, in periodic installments, as required by 28 U.S.C. § 1915(b). The agency having custody of Plaintiff shall collect 20% of the monthly income from the Plaintiff's account and forward that amount, if any, to the Court in monthly installments until the entire $350.00 filing fee is satisfied. This dismissal constitu tes a "strike" for purposes of 28 U.S.C. § 1915(g). The Clerk of Court shall send a copy of this dismissal to the Clerk of the United States District Court for the Southern District of Texas, Houston Division, 515 Rusk Street, Houston, Texas, 77002, Attention: Three-Strikes List Manager. Email sent to Manager of Three Strikes List. (Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
ROBERT E. ATWOOD,
PHILLIPS, et al,
October 25, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-3134
MEMORANDUM AND ORDER
Plaintiff Robert E. Atwood (TDCJ #00646180) is an inmate currently in the custody of
the Texas Department of Criminal Justice (“TDCJ”). Plaintiff has filed a civil rights complaint
pursuant to 42 U.S.C. § 1983, alleging that correctional officers at the Wynne Unit deprived him
of his property after he was disciplined and placed in administrative segregation and later
transferred to another unit. After reviewing the pleadings as required under 28 U.S.C. § 1915A,
the Court concludes that this case must be dismissed for failure to state a claim for the reasons
Plaintiff alleges that he was involved in an altercation with Defendant Correctional
Officer McGowen (“McGowen”) in June 2016, when he was on his way to the infirmary. See
Docket Entry No. 1 at 6; Docket Entry No. 1-1 at 3. Plaintiff alleges that McGowen snatched his
identification card from his hand and that he grabbed her arm and took it back, which resulted in
a disciplinary action and his assignment to administrative segregation. See Docket Entry No. 1-1
at 3-4. Plaintiff alleges that Defendant Poreda and L. Keith, correctional officers at the Wynne
Unit, packed up his property in the aftermath of his disciplinary conviction and relocation at the
prison. See Docket Entry No. 1 at 3. Plaintiff claims that he has not seen his property since June
26, 2016, even though he has tried to get it back. Id. at 6. Plaintiff allegedly wrote to Defendant
Correctional Officer Phillips repeatedly requesting that she send him his property, but she never
responded to his requests. Id. at 4. For relief, Plaintiff seeks $325,000 in damages for the loss of
his property. Id. at 5.
STANDARD OF REVIEW
The complaint in this case is governed by the Prison Litigation Reform Act (“PLRA”).
The PLRA requires that the district court review a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee of a governmental entity. 28
U.S.C. § 1915A(a). On review, the Court must identify cognizable claims or dismiss the
complaint or any portion thereof, if the court determines that the complaint is frivolous,
malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b). In conducting that analysis, a
prisoner’s pro se pleading is reviewed under a less stringent standard that those drafted by an
attorney and is entitled to a liberal construction that includes all reasonable inferences which can
be drawn from it. Haines v. Kerner, 404 U.S. 519 (1972); Alexander v. Ware, 714 F.2d 416, 419
(5th Cir. 1983).
A complaint may be dismissed as frivolous if it lacks any arguable basis in law or fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998).
“A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal
theory, such as if the complaint alleges violation of a legal interest which clearly does not exist.”
Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999) (citing Harper v. Showers, 174 F.3d 716,
718 (5th Cir. 1999) (quoting Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998)). A review for
failure to state a claim is governed by the same standard used to review a dismissal pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Newsome v. EEOC, 301 F.3d 227,
231 (5th Cir. 2002). Under that standard, courts must assume that plaintiff’s factual allegations
are true, and a dismissal is proper only if it appears that no relief could be granted under any set
of facts that could be proven consistent with the allegations. Id. (citations omitted).
Plaintiff brings claims against the Defendants for allegedly depriving him of property and
failing to respond to his requests for its return after he was transferred to a different unit.
Plaintiff alleges that Defendants Poreda and Keith packed up his property in connection with
Plaintiff’s move from his cell as the result of his disciplinary conviction for the altercation with
Officer McGowen. He also contends that Defendant Phillips, the Property Manager at the
Wynne Unit, never responded to his repeated requests for his property to be sent to his new unit.
He seeks $325,000.00 in damages.
Plaintiff’s claim for compensatory damages is subject to dismissal pursuant to 42 U.S.C.
§ 1997e(e) because he does not allege any physical injury in connection with his claim. See 42
U.S.C. § 1997e(e) (“No federal civil action may be brought by a prisoner confined to a jail,
prison, or other correctional facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury.”); Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir.
2005) (holding that § 1997e(e) bars compensatory damages for allegations of “mental anguish,
emotional distress, psychological harm,” and the like). For this independent reason, Plaintiff’s
claim for monetary damages fails under the PLRA.
Additionally, Plaintiff’s claims regarding the wrongful and unauthorized deprivation of
his personal property are barred by the Parratt/Hudson doctrine. See Hudson v. Palmer, 468
U.S. 517, 534 (1984); Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled in part on other
grounds, Daniels v. Williams, 474 U.S. 327 (1986); see also Sossaman v. Williams, 270 F. App’x
323, 325 (5th Cir. 2008) (confiscation and destruction of “dangerous contraband” by guard was
random and unauthorized and therefore prisoner’s due process claim was barred). According to
this doctrine, a negligent, or even intentional, deprivation of property by state officials that is
random and unauthorized does not rise to the level of a constitutional violation or a cognizable
claim under 42 U.S.C. § 1983 if state law provides an adequate post-deprivation remedy. See
Hudson, 468 U.S. at 533-34; see also Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 82122 (5th Cir. 2007) (explaining the Parratt/Hudson doctrine).
Texas provides a remedy for inmates whose property has been taken or destroyed in an
unauthorized manner. See Myers v. Klevenhagen, 97 F.3d 91, 95 (5th Cir.1996); Aguilar v.
Chastain, 923 S.W.2d 740, 743-44 (Tex. Crim. App.1996); see also TEX. GOV’T CODE §§
501.007, 501.008. Plaintiff’s complaint regarding the unauthorized loss or deprivation of his
property has no basis in federal law because Texas provides an adequate post-deprivation
remedy. See Murphy v. Collins, 26 F.3d 541, 543-44 (5th Cir. 1994).
Accordingly, Plaintiff does not articulate an actionable claim for which relief can be
granted under 42 U.S.C. § 1983 regarding the unauthorized deprivation of his personal property.
See id.; see also Leggett v. Williams, 277 F. App’x 498, 500, 2008 WL 1984271 (5th Cir. 2008)
(holding that the plaintiff’s claim that his property was confiscated and destroyed as an act of
retaliation for his status as a writ writer was barred by the Parratt/Hudson doctrine). Therefore,
he fails to state a federal claim under section 1983, and this case must be dismissed.1
The Court declines to exercise supplemental jurisdiction over any possible state claims where, as here,
Plaintiff has failed to present any viable federal claims over which the Court could have original
jurisdiction. See 28 U.S.C. §1367(c)(3).
CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS as follows:
1. Plaintiff’s federal claims pursuant to 42 U.S.C. § 1983 are DISMISSED with
prejudice as for failure to state a claim for which relief may be granted pursuant to 28
2. Plaintiff’s Motion to Proceed In Forma Pauperis (Docket Entry No. 2) is
GRANTED, and Plaintiff is assessed an initial filing fee of $4.00. Thereafter,
Plaintiff shall pay the full filing fee of $350.00, in periodic installments, as required
by 28 U.S.C. § 1915(b). The agency having custody of Plaintiff shall collect 20% of
the monthly income from the Plaintiff’s account and forward that amount, if any, to
the Court in monthly installments until the entire $350.00 filing fee is satisfied.
3. This dismissal constitutes a “strike” for purposes of 28 U.S.C. § 1915(g). The
Clerk of Court shall send a copy of this dismissal to the Clerk of the United
States District Court for the Southern District of Texas, Houston Division, 515
Rusk Street, Houston, Texas, 77002, Attention: Three-Strikes List Manager, at
the following email: Three_Strikes@txs.uscourts.gov.
The Clerk of Court will also send a copy of this Order to the parties, and a copy by
facsimile transmission, regular mail, or e-mail to the Inmate Trust Fund, P.O. Box 629,
Huntsville, Texas 77342-0629, fax 936-437-4793.
SIGNED at Houston, Texas, this 25th day of October, 2017.
UNITED STATES DISTRICT JUDGE
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