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Moore v. Herrera

United States District Court, S.D. Texas, Houston Division

June 13, 2019

DAVID TERRY MOORE, TDCJ-CID #1165885 Plaintiff,
v.
ROBERT HERRERA, et al., Defendants.

          MEMORANDUM AND OPINION

          VANESSA D. GILMORE UNITED STATES DISTRICT JUDGE.

         David Terry Moore, an inmate of the Texas Department of Criminal Justice - Correctional Institutions Division ("TDCJ-CID"), sued in June 2019, alleging civil rights violations resulting from a denial of due process. Moore, proceeding pro se and in forma pauperis, sues the following officials at the Pack I Unit: Robert Herrera, Head Warden; Paul Wilder, Assistant Warden; Raul Mendoza, Correctional Officer V; and Courtney Mitchell, Correctional Officer V.

         The threshold issue is whether Moore's claims should be dismissed as frivolous.

         I. Moore's Allegations

         Moore asserts that he stored certain food items in containers he previously purchased from the unit commissary. In his grievances, Moore states that he stored Colombian coffee and an electrolyte mixture in peanut butter jars. (Docket Entry No. 1, p. 6). He complains that his property was confiscated on the ground that it was contraband.

         Moore asserts that Warden Herrera and Assistant Warden Wilder allowed officers to conduct searches of inmate property without knowledge of TDCJ policy. He asserts that Officer Mendoza confiscated five family photographs and eight magazines. In the response to Moore's grievance, prison officials stated that the photographs and magazines had a different TDCJ-CID inmate number and that Moore had instructed the officer to throw them away. (Docket Entry No. 1, p. 14). Moore alleges that Officer Mitchell failed to issue confiscation papers following the search of inmate property on December 1, 2018.

         Moore seeks unspecified compensatory damages.

         II. Standard of Review

         A federal court has the authority to dismiss an action in which the plaintiff is proceeding in forma pauperis before service if the court determines that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i). A complaint is frivolous if it lacks an arguable basis in law or fact. See Denton v. Hernandez, 504 U.S. 25, 31 (1992); Richardson v. Spurlock, 260 F.3d 495, 498 (5th Cir. 2001) (citing Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997)). "A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)).

         III. The Due Process Claim

         An inmate's allegation that his property was lost or damaged, or its receipt delayed by a prison official, 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 an inmate's property is taken without compensation, he has a remedy in state court, not a federal court claim under 42 U.S.C. § 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). Moore has made neither of the required showings. His claim against the defendants lacks an arguable basis in law.

         IV. The Claim Based on an Inadequate Grievance System

         Moore alleges that the defendants violated his civil rights by failing to resolve the complaints presented in his grievances. "A prisoner has a liberty interest only in freedoms from restraint imposing atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005) (internal citation and quotation omitted). An inmate does not have a constitutionally protected liberty interest in having grievances resolved to his satisfaction. There is no due process violation when prison officials fail to do so. Geiger v. Jowers,404 F.3d 371, 373-74 (5th Cir. 2005); see also Edmond v. Martin, et ah, slip op. no. 95-60666 (5th Cir., Oct. 2, 1996) (unpublished) (prisoner's claim that a defendant "failed to investigate and denied his grievance" raises no constitutional issue); Thomas v. Lensing, et ah, slip op. no. 01-30658 (5th Cir., Dec. 11, 2001) (unpublished) (same). The defendants' alleged failure to address the grievances to ...


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