Connall v. Franklin

Filing 4

ORDER AND REPORT AND RECOMMENDATION re #1 Complaint filed by Paul J. Connall. IT IS ORDERED Plaintiff's #2 MOTION to Proceed in forma pauperis is GRANTED. Signed by Judge Dustin M. Howell. (jv2)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
DIVISION
PAUL J. CONNALL,
Plaintiff
v.
LARRY FRANKLIN,
Defendant

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No. 1:22-CV-1381-RP

ORDER AND REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
The Magistrate Court submits this report and recommendation to the United

States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the
Local Court Rules of the United States District Court for the Western District of
Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
Before the Court is Plaintiff Paul J. Connall’s Application to Proceed In Forma
Pauperis. Dkt. 2. Because Connall is requesting permission to proceed in forma
pauperis, the undersigned must review and make a recommendation on the merits of
his claims pursuant to 28 U.S.C. § 1915(e).
I.

REQUEST TO PROCEED IN FORMA PAUPERIS

The Court has reviewed Connall’s financial affidavit and determined that
Connall is indigent and should be granted leave to proceed in forma pauperis.
Accordingly, the Court hereby GRANTS Connall’s request for in forma pauperis
status, Dkt. 2. The Clerk of the Court shall file the complaint without payment of fees
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or costs or giving security therefor pursuant to 28 U.S.C. § 1915(a). This indigent
status is granted subject to a later determination that the action should be dismissed
if the allegation of poverty is untrue or the action is found frivolous or malicious
pursuant to 28 U.S.C. § 1915(e). Connall is further advised that, although he has been
granted leave to proceed in forma pauperis, a court may, in its discretion, impose
costs of court at the conclusion of this lawsuit, as in other cases. Moore v. McDonald,
30 F.3d 616, 621 (5th Cir. 1994).
As stated below, the undersigned has made a § 1915(e) review of the claims
made in this complaint and is recommending Connall’s claims be dismissed under 28
U.S.C. § 1915(e). Therefore, service upon Defendant should be withheld pending the
District Court’s review of the recommendations made in this report. If the District
Court declines to adopt the recommendations, then service should be issued at that
time upon Defendant.
II.

REVIEW OF THE MERITS OF THE CLAIM

Because Connall has been granted leave to proceed in forma pauperis, the
undersigned is required by statute to review the Complaint. Section 1915(e)(2)
provides in relevant part that “the court shall dismiss the case at any time if the court
determines that … the action or appeal (i) is frivolous or malicious; (ii) fails to state
a claim on which relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). A complaint is
frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams,
490 U.S. 319, 325 (1989); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A

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claim lacks an arguable basis in law when it is “based on an indisputably meritless
legal theory.” Neitzke, 490 U.S. at 327.
Pro se complaints are liberally construed in favor of the plaintiff. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). However, pro se status does not offer a plaintiff
an “impenetrable shield, for one acting pro se has no license to harass others, clog the
judicial machinery with meritless litigation, and abuse already overloaded court
dockets.” Farguson v. MBank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986).
Connall complains of “destruction of my personal property” and property that
was “thrown away” and “lost” by “Larry Franklin” in his individual capacity. Connall
requests $50,000 in damages from Franklin for the property and $50,000 for his civil
rights complaint against Franklin. Connall fails to identify who Franklin is, or
exactly how Franklin destroyed his property; however, he provides a far-ranging list
of property including gold jewelry worth “24K,” an iphone, clothes, legal books,
blankets, and Tupperware. Dkt. 1, at 4-5. On the civil cover sheet, he alleges federal
question and non-prisoner civil rights. Dkt. 1-1, at 1. However, a review of other cases
Connall has filed in the Austin Division of the Western Division of Texas shows he
was recently released from state confinement in a privately operated halfway house.
As relevant here, 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress, except that in any action brought against a judicial officer for an act
or omission taken in such officer's judicial capacity, injunctive relief shall not
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be granted unless a declaratory decree was violated or declaratory relief was
unavailable.
Id.
Section 1983 “is not itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred by those parts of the United States
Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137,
144, n.3 (1979). To prevail in a § 1983 claim, a plaintiff must establish two elements:
(1) a constitutional violation; and (2) that the defendants were acting under color of
state law when they committed the constitutional violation. Whitley v. Hanna, 726
F.3d 631, 638 (5th Cir. 2013). In this case, Connall has failed to plead that Franklin
was a state actor and failed to plead that the alleged destruction of his property
qualifies as a constitutional violation.
However, assuming Franklin is a state actor, Connall’s claims that his
property was “trashed” and “lost” by Franklin also fail. The Fourteenth Amendment
to the Constitution provides that no State shall “deprive any person of life, liberty, or
property without due process of law.” U.S. Const. amend. XIV, § 1. Under the
Parrat/Hudson doctrine, a random and unauthorized deprivation of property does
not give rise to a violation of the Due Process Clause if the state provides an adequate
post-deprivation remedy. See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996)
(discussing the Supreme Court’s decisions in Parratt v. Taylor, 451 U.S. 527 (1981),
and Hudson v. Palmer, 468 U.S. 517 (1983), as dictating that a state actor’s random
and unauthorized deprivation of property does not result in a violation of procedural
due process if the state provides an adequate post-deprivation remedy, and
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explaining “the doctrine protects the state from liability for failing to provide a
predeprivation process in situations where it cannot anticipate the random and
unauthorized actions of its officers”) Thus, in challenging a random intentional
property deprivation, the claimant must either take advantage of the available
remedies or prove that the available remedies are inadequate. Hudson, 468 U.S. at
534-35; Myers, 97 F.3d at 94. “Texas law provides an adequate post-deprivation
remedy for property loss [by prisoners as a result of acts] by prison employees through
the administrative grievance process and through the court system.” Dye v. Ambriz,
168 F. App’x 638, 639 (5th Cir. 2006) (citing Tex. Gov’t Code §§ 501.007, 501.008;
Murphy v. Collins, 26 F.3d 541, 543-44 (5th Cir. 1994); Aguilar v. Chastain, 923
S.W.2d 740, 743-44 (Tex. App.—Tyler 1996, writ denied)).
Because Texas provides an adequate post-deprivation remedy, Connall’s
claims concerning the taking of his personal property do not rise to a violation of the
Due Process Clause. See Hudson, 468 U.S. at 536 (noting that even where a prisoner’s
property was intentionally destroyed, such destruction did not violate the Fourteenth
Amendment because the Commonwealth of Virginia provided the prisoner with an
adequate post-deprivation remedy.) Thus, even if Franklin qualifies as a state actor,
Connall’s claims concerning the loss of his personal property fail to state a claim of a
violation of a constitutional right, and are properly dismissed as frivolous.

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III.

ORDER AND RECOMMENDATION

The Magistrate Court hereby GRANTS Connall’s Application to Proceed In
Forma Pauperis. Dkt. 2. The Magistrate Court RECOMMENDS the District Court
DISMISS Connall’s cause of action with prejudice pursuant to 28 U.S.C.
§ 1915(e)(2)(B). The referral of this case to the Magistrate Court should now be
canceled.
IV.

WARNINGS

The parties may file objections to this Report and Recommendation. A party
filing objections must specifically identify those findings or recommendations to
which objections are being made. The District Court need not consider frivolous,
conclusive, or general objections. See Battle v. United States Parole Comm’n, 834 F.2d
419, 421 (5th Cir. 1987). A party’s failure to file written objections to the proposed
findings and recommendations contained in this Report within fourteen days after
the party is served with a copy of the Report shall bar that party from de novo review
by the District Court of the proposed findings and recommendations in the Report
and, except upon grounds of plain error, shall bar the party from appellate review of
unobjected-to proposed factual findings and legal conclusions accepted by the District
Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985);
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

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SIGNED January 17, 2023.

DUSTIN M. HOWELL
UNITED STATES MAGISTRATE JUDGE

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