United States District Court, W.D. Texas, Austin Division
DERRICK L. CATHEY #17-42311
HONORABLE SAM SPARKS UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE.
Magistrate Judge submits this Report and Recommendation to
the District Court pursuant to 28 U.S.C. §636(b) and
Rule 1(f) 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.
the Court is Plaintiff's complaint. Plaintiff, proceeding
pro se, has been granted leave to proceed in forma pauperis.
OF THE CASE
time he filed his complaint pursuant to 42 U.S.C. §
1983, Plaintiff was confined in the Travis County
Correctional Complex (“TCCC”). Plaintiff alleges
on December 25, 2017, Travis County officers at the TCCC
performed a shakedown of his pod. Prior to the shakedown,
Plaintiff asserts he approached Officer McDonald and informed
the officer that three of his gold teeth had been knocked
loose earlier and he had them in his pocket. He explained he
was awaiting a dental appointment to have them reinserted.
According to Plaintiff, Officer McDonald said he would hang
onto them and place them back in Plaintiff's cell under
his mat. After Plaintiff returned to his cell, Plaintiff
asserts he was only able to find one. Plaintiff asserts he
notified Officer Banks, who allegedly phoned Officer
McDonald. Officer McDonald indicated he may have put them in
another cell under someone else's mattress. Plaintiff
describes the “mouth jewelry” as “22kg with
1.2 karat diamond clusters rose gold” valued at $225
each. Plaintiff sues Officer McDonald and seeks damages in
the amount of $675.00.
Standard Under 28 U.S.C. § 1915(e)
forma pauperis proceeding may be dismissed sua sponte under
28 U.S.C. § 1915(e) if the court determines the
complaint is frivolous, malicious, fails to state a claim
upon which relief may be granted or seeks monetary relief
against a defendant who is immune from suit. A dismissal for
frivolousness or maliciousness may occur at any time, before
or after service of process and before or after the
defendant's answer. Green v. McKaskle, 788 F.2d
1116, 1119 (5th Cir. 1986).
reviewing a plaintiff's complaint, the court must
construe plaintiff's allegations as liberally as
possible. Haines v. Kerner, 404 U.S. 519 (1972).
However, the petitioner's pro se status does not offer
him “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).
procedural due process claims are barred by the
Parratt/Hudson doctrine. See Parratt v.
Taylor, 451 U.S. 527, 541-44 (1981), overruled in
part by Daniels v. Williams, 474 U.S. 327,
330-31 (1986); Hudson v. Palmer, 468 U.S. 517, 533
(1984). Under the Parratt/Hudson doctrine, a
deprivation of property-whether negligent or intentional-by
state officials that is random and unauthorized does not rise
to the level of a procedural due process violation if state
law provides an adequate post-deprivation remedy. Myers
v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996);
Brooks v. George County, Miss., 84 F.3d 157, 165
(5th Cir. 1996). “The doctrine is meant to protect the
state from liability for failing to provide pre-deprivation
process in situations where it cannot anticipate the need for
such process (when actions are random and
unauthorized).” Brooks, 84 F.3d at 165 (hyphen
added; parenthetical in original). The Fifth Circuit has
further clarified that the doctrine applies when the state
provides adequate post-deprivation remedies and: (1) the
deprivation was unpredictable or unforeseeable; (2)
pre-deprivation process would have been impossible or
impotent to counter the state actors' particular conduct;
and (3) the conduct was unauthorized in the sense that it was
not within the officials' express or implied authority.
Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir. 1991)
(en banc). In Texas, having the right to bring suit for
conversion generally constitutes an adequate post-deprivation
remedy. Murphy v. Collins, 26 F.3d 541, 543 (5th
Cir. 1994). The burden is on the plaintiff to show that the
State's post-deprivation remedy is not adequate.
Myers, 97 F.3d at 94. One way in which the plaintiff
can do this is to show that the state courts denied his claim
for some reason other than lack of merit. Thompson v.
Steele, 709 F.2d 381, 383 n.3 (5th Cir. 1983).
does not allege that his property was taken by anyone acting
pursuant to any official policy, custom, or procedure.
Rather, his factual allegations describe a random and
unauthorized act. Because Plaintiff has an adequate remedy at
law in state court, his § 1983 claim with respect to the
loss of his property is without a legal basis and subject to