United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER, UNITED STATES MAGISTRATE JUDGE.
to 28 U.S.C. § 636(b) and Special Order 3, this
case was referred to the United States magistrate judge for
case management, including the issuance of findings and a
recommended disposition. The Court granted Plaintiff Patrick
Gene Russell's motion to proceed in forma
pauperis, but did not issue process pending preliminary
screening. Doc. 10; Doc. 4. Upon review of the relevant
pleadings and applicable law, this case should be summarily
DISMISSED WITH PREJUDICE as frivolous.
29, 2019, Russell, a Dallas County Jail inmate, filed a
pro se prisoner civil rights complaint against the
Dallas County Jail and Officers Frey and Brown. Doc. 3 at 1.
He asserts that on June 12, 2019, he was (1) removed from his
cell, (2) informed that he had “too many books, ”
and (3) ordered to leave all his property behind so that
Officer Frey could search for any contraband. Doc. 3 at 4.
The following day, however, Russell discovered that all his
religious materials, dictionaries, and some of his
“legal letters” were missing. Doc. 3 at 6. He
requests that the Court “[d]eclare a mistrial in ALL
cases in Dallas County Court” and award him $300
“per day for incarseration [sic] since [his] arrival in
Dallas, Texas.” Doc. 3 at 6. Upon review, Russell's
complaint lacks any legal basis and should be dismissed as
Plaintiff is proceeding in forma pauperis, his
complaint is subject to screening under 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Those statutes
provide for the sua sponte dismissal of a complaint
if the Court finds that it (1) is frivolous or malicious, (2)
fails to state a claim upon which relief may be granted, or
(3) seeks monetary relief against a defendant who is immune
from such relief. 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 complaint lacks an arguable basis in law when it is
“based on an indisputably meritless legal theory,
” Id. at 327, and fails to state a claim upon
which relief can be granted if it does not plead
“enough facts to state a claim to relief that is
plausible on its face, ” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
Court must always liberally construe pleadings filed by
pro se litigants. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (noting pro se pleadings
“must be held to less stringent standards than formal
pleadings drafted by lawyers”); Cf.Fed. R.
Civ. P. 8(e) (“Pleadings must be construed so as to do
justice.”). Even under the most liberal construction,
however, Russell's claims are frivolous.
Loss of Property
claim that his books and mail were taken lacks any basis in
federal law. Whether intentional or negligent, a
“random and unauthorized” deprivation of property
neither violates the Constitution nor states a claim under 42
U.S.C. § 1983 when adequate state post-deprivation
remedies are available. Hudson v. Palmer, 468 U.S.
517, 533 (1984). Texas law provides adequate state
post-deprivation remedies, including a state action for the
tort of conversion. Brewster v. Dretke, 587 F.3d
764, 768 (5th Cir. 2009) (citing Murphy v. Collins,
26 F.3d 541, 543-44 (5th Cir. 1994)). Because Plaintiff has
available state post-deprivation remedies, his federal claim
based on the alleged taking of his personal property is
legally frivolous under Hudson. See
Stauffer v. Gearhart, 741 F.3d 574, 583 (5th Cir.
2014) (“In Texas, when an inmate's property is
taken without compensation, his remedy is in state court, not
extent Russell seeks a “mistrial” or to dismiss
his state criminal charges, his claim is not cognizable under
section 1983. See Wilkinson v. Dotson, 544
U.S. 74, 78 (2005) (“a prisoner in state custody cannot
use a § 1983 action to challenge ‘the fact or
duration of his confinement'” (quoting Preiser
v. Rodriguez, 411 U.S. 475, 498 (1973))). Constitutional
challenges to state court charges and convictions are
generally cognizable in a federal habeas corpus action after
exhaustion of state court remedies. See28 U.S.C.
§§ 2241, 2254. Thus, this claim also lacks any
LEAVE TO AMEND
“a pro se litigant should be offered an
opportunity to amend his complaint before it is dismissed,
” however the court is not required to grant leave to
amend “if the plaintiff has already pleaded his
‘best case.” Brewster v. Dretke, 587
F.3d 764, 767-768 (5th Cir. 2009) For the reasons outlined
here, Russell's claims are fatally infirm and cannot be
cured by amendment. Thus, granting leave to amend would be
futile and cause needless delay.