Flores v. Anthony
Filing
6
MEMORANDUM OPINION AND ORDER (Email sent to Manager of Three Strikes List.) - Plaintiff's claims under section 1983 are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915A(b) and § 1915(e)(2)(B) for failure to state a claim upon which relief can be granted. Any and all pending motions are DISMISSED AS MOOT. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
Case 4:20-cv-02008 Document 6 Filed on 06/24/20 in TXSD Page 1 of 5
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FRANCISCO R. FLORES, TDCJ #02110551, §
§
Plaintiff,
§
§
v.
§
§
MS. ANTHONY,
§
§
Defendant.
§
June 24, 2020
David J. Bradley, Clerk
CIVIL ACTION NO. H-20-2008
MEMORANDUM OPINION AND ORDER
Plaintiff Francisco R. Flores, TDCJ #02110551, a state inmate proceeding pro se and
in forma pauperis, filed this section 1983 lawsuit against an employee of the Texas
Department of Criminal Justice (“TDCJ”) at the Ferguson Unit.
Having screened the complaint as required by sections 1915 and 1915A, the Court
DISMISSES this lawsuit for the reasons shown below.
Background and Claims
Plaintiff reports that in August 2019, while assigned to the Ferguson Unit, he mail
ordered a magazine publication entitled, “Intoxicating N14.”1 The magazine was intercepted
at the unit mail room, reviewed by prison officials and a policy committee, and found to
contain sexually explicit images prohibited by prison policy. Plaintiff complains that he was
not kept informed of these events, and that he had to file an “emergency grievance” to find
1
In his complaint, plaintiff states that he ordered the magazine; in his grievances, he told
prison officials that his family had ordered the magazine for him. The factual discrepancy plays no
part in the Court’s resolution of the claim.
Case 4:20-cv-02008 Document 6 Filed on 06/24/20 in TXSD Page 2 of 5
out what happened. The magazine was ultimately confiscated, and defendant Ms. Anthony,
a mail room manager, informed plaintiff that the magazine had been destroyed on September
23, 2019.
Plaintiff claims that Ms. Anthony told him she destroyed the magazine by accident
instead of mailing it to his family, and that the prison would pay for the loss. Plaintiff states
that she “lied” about the events and that he has not been compensated for his loss. His step
1 and step 2 prison grievances were denied.
As judicial relief, plaintiff seeks monetary compensation for his property loss and for
the time he spent tracking down his magazine.
Analysis
Because plaintiff is a state inmate proceeding pro se and in forma pauperis, the Court
is required to scrutinize his claims and dismiss the complaint, in whole or in part, if it
determines that the complaint “is frivolous, malicious, or 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. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
A complaint is frivolous when it “lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when
it is “based on an indisputably meritless legal theory.” Id. at 327. A complaint fails to state
a claim upon which relief may be granted when it fails to plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
2
Case 4:20-cv-02008 Document 6 Filed on 06/24/20 in TXSD Page 3 of 5
Plaintiff complains that his magazine was intercepted, confiscated, and unlawfully
destroyed by defendant Anthony. He impliedly claims that this property loss violated his
constitutional due process rights and that he is entitled to monetary damages.
An inmate’s allegation that his property was lost or damaged, or its receipt delayed
by prison officials, does not state a claim under 42 U.S.C. § 1983, even when the prison
official acted intentionally. Hudson v. Palmer, 468 U.S. 517 (1984). In Texas, when a state
inmate’s property is taken without compensation, he has a remedy in state court, not federal
court. A prisoner has no viable claim under section 1983 for loss or damage to property
unless there is no post-deprivation remedy or the remedy is inadequate. Marshall v.
Norwood, 741 F.2d 761, 764 (5th Cir.1984). Plaintiff has made neither of these required
showings.
Texas common law allows recovery of monetary damages for loss of property that has
been taken without authorization. See, e.g., Murphy v. Collins, 26 F.3d 541, 543 (5th Cir.
1994) (noting that for Texas prisoners, the tort of conversion fulfills this requirement);
Cathey v. Guenther, 47 F.3d 162, 164 (5th Cir. 1995). Texas statutory law also provides that
inmates may recover up to $500 for lost or damaged property. See TEX. GOV’T CODE §§
501.007, 501.008. See also TEX. CIV. PRAC. & REM. CODE § 16.003(a) (providing a two-year
statute of limitations for certain causes of action). Because Texas law provides an adequate
post-deprivation remedy, plaintiff’s loss of his magazine does not state a violation of the
federal Due Process Clause and no federal claim is raised. See Hudson, 468 U.S. at 536.
3
Case 4:20-cv-02008 Document 6 Filed on 06/24/20 in TXSD Page 4 of 5
Plaintiff alleges that defendant Anthony told him she mistakenly destroyed the
magazine instead of mailing it to plaintiff’s family. Any failure by Anthony to follow proper
prison procedures for mailing the magazine to plaintiff’s family would constitute at most a
negligent act, and the negligent deprivation of property by prison officials does not create a
civil rights claim. See Daniels v. Williams, 474 U.S. 327, 328, 332–33 (1986) (“[T]he Due
Process Clause is simply not implicated by a negligent act of an official causing unintended
loss of or injury to life, liberty, or property.”); Ortiz v. Giles W. Dolby Correctional Facility,
396 F. App’x 144 (5th Cir. 2010); Simmons v. Poppell, 837 F.2d 1243, 1244 (5th Cir. 1988).
To any extent plaintiff seeks separate compensation for the time he spent tracking
down his magazine through the publisher and prison officials, he pleads no factual basis
supporting such recovery. Assuming, without so finding, that his expenditure of personal
time could be considered a factor for purposes of monetary compensation, plaintiff raises no
constitutional issue for which recovery of damages can be granted in this lawsuit.
Plaintiff’s complaint fails to raise a viable claim upon which relief can be granted
under section 1983, and his claims will be dismissed without prejudice.
Conclusion
Plaintiff’s claims under section 1983 are DISMISSED WITHOUT PREJUDICE
pursuant to 28 U.S.C. § 1915A(b) and § 1915(e)(2)(B) for failure to state a claim upon which
relief can be granted. Any and all pending motions are DISMISSED AS MOOT.
4
Case 4:20-cv-02008 Document 6 Filed on 06/24/20 in TXSD Page 5 of 5
This dismissal constitutes a strike for purposes of section 1915(g).
The Clerk is to provide a copy of this order to plaintiff; to the TDCJ–Office of the
General Counsel, P.O. Box 13084, Austin, Texas, 78711; and to the United States District
Court for the Southern District of Texas, Houston Division, Attention: Three-Strikes List
Manager, at the following email: Three_Strikes@txs.uscourts.gov.
Signed at Houston, Texas on June 24, 2020.
Gray H. Miller
Senior United States District Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?