United States District Court, N.D. Texas, Wichita Falls Division
ZACHARY LEON TRUMBLE, Wichita County Jail No. SO 72426, Plaintiff,
SGT. REYNOLDS, et al. Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE.
an inmate confined in the Wichita County Jail in Wichita
Falls, Texas, filed this action pursuant to 42 U.S.C. §
1983. Defendants are Sergeant Reynolds, Officer Walsh, and
Wichita County Jail. ECF No. 1. Plaintiff claims that his
personal property, which included “clothes and
stuff” was thrown away by Wichita County Jail guards.
Id. He seeks monetary damages. Id.
filed by pro se litigants may be dismissed as
frivolous when they seek to re-litigate claims premised upon
substantially the same facts arising from a common series of
events upon which the plaintiff has relied in a previous
lawsuit, even if the previous suit remains pending.
Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993);
Wilson v. Lynaugh, 878 F.2d 846, 850 (5th Cir.
1989); see also Adele v. Rogers, 669 F. App'x
264 (5th Cir. 2016); Cato v. United States, 70 F.3d
1103, 1105 n.2 (9th Cir. 1995); Bailey v. Johnson,
846 F.2d 1019, 1021 (5th Cir. 1988); Van Meter v.
Morgan, 518 F.2d 366, 367-68 (8th Cir. 1975);
Ballentine v. Crawford, 563 F.Supp. 627, 629 (N.D.
Ind. 1983). Plaintiff's claims are identical to those set
forth in his previously filed case that was dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to
state a claim on which relief may be granted. Trumble v.
Wichita County Sheriff's Office, No. 7:17-cv-00142-O
(N.D. Tex.). Thus, the case at bar constitutes repetitive
litigation. See Pittman v. Moore, 980 F.2d at 995
(noting that a plaintiff is entitled to “one bite at
the litigation apple - but not more”).
indicated in the Court's previous order dismissing
Plaintiff's claims, Plaintiff cannot prevail in this
federal lawsuit. The United States Supreme Court has held
that the “unauthorized, intentional deprivation of
property” does not constitute a civil rights violation
if there exists a meaningful post-deprivation remedy.
Hudson v. Palmer, 468 U.S. 517, 533 (1984);
accord Nickens v. Melton, 38 F.3d 183, 184-85 (5th
Cir. 1994); see also Holloway v. Walker, 790 F.2d
1170, 1174 (5th Cir. 1986) (finding no breach of federally
guaranteed constitutional rights, even where a high-level
state employee intentionally engages in tortious conduct, as
long as the state system as a whole provides due process of
law). Under the circumstances of the instant case, Plaintiff
has the state common-law action of conversion available to
remedy his alleged loss of property. Allen v.
Thomas, 388 F.3d 147, 149 (5th Cir. 2004); Murphy v.
Collins, 26 F.3d 541, 543-44 (5th Cir. 1994); Myers
v. Adams, 728 S.W.2d 771 (Tex. 1987). Conversion occurs
when there is an unauthorized and unlawful exercise of
dominion and control over the personal property of another
which is inconsistent with the rights of the owner.
Armstrong v. Benavides, 180 S.W.3d 359, 363 (Tex.
App. - Dallas 2005, no writ); Beam v. Voss,
568 S.W.2d 413, 420-21 (Tex. Civ. App.-San Antonio 1978,
no writ). If Defendants exercised unauthorized
control over Plaintiff's personal property, he has a
factual basis to allege a cause of action in conversion. Such
a common-law action in state court would be sufficient to
meet constitutional due process requirements. Brown v.
Vasquez, 699 F. App'x 335, 336 (5th Cir. 2017).
Thus, in bringing such claims, Plaintiff must either take
advantage of the available remedies or prove that the
available remedies are inadequate. Hudson, 468 U.S.
at 534-35. Because Texas law provides an adequate
post-deprivation remedy for the loss of the personal-property
items, Plaintiff's claim concerning the taking of his
personal property does not rise to a violation of the Due
extent, if any, that Plaintiff claims his property is missing
as a result of negligence on the part of any Defendant, he
cannot prevail. Complaints of negligence are not actionable
under the Civil Rights Act. Daniels v. Williams, 474
U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344
foregoing reasons, the undersigned
RECOMMENDS that Plaintiff's Complaint be
DISMISSED without prejudice pursuant to 28
U.S.C. § 1915A(b)(1) as frivolous. Although Plaintiff
has neither paid the filing fee nor filed a motion for leave
to proceed in forma pauperis, the Court has the
authority under 28 U.S.C. § 1915A to screen and dismiss
frivolous lawsuits filed by inmates. An action is frivolous
if it lacks an arguable basis in either law or fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989);
Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.
1991). A complaint is without an arguable basis in law if it
is “based on an indisputably meritless legal
theory.” Neitzke, 490 U.S. at 327. The claims
set forth in the case at bar have no arguable basis under
of this Findings, Conclusions, and Recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of this Findings, Conclusions,
and Recommendation must file specific written objections
within fourteen days after being served with a copy.
See 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P.
72(b)(1). In order to be specific, an objection must identify
the specific finding or recommendation to which objection is
made, state the basis for the objection, and specify the
place in the magistrate judge's findings, conclusions,
and recommendation where the disputed determination is found.
An objection that merely incorporates by reference or refers
to the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings ...