Stephenson v. Velasquez , 141 F. App'x 301 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-41200
Summary Calendar
RUSSELL STEPHENSON,
Plaintiff-Appellant,
versus
A VELASQUEZ, Warden; HARRISON, Officer;
BENNETT, Lieutenant,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:03-CV-443
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Before REAVLEY, JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Russell Stephenson, Texas prisoner #432028, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). He maintains
that 28 U.S.C. § 1915(e)(2) was not applicable to this case
because the district court ordered him to pay the full filing fee
in installments. This contention is without merit. See 28
U.S.C. § 1915(e)(2). We review a dismissal as frivolous under 28
U.S.C. § 1915(e)(2)(B)(i) for abuse of discretion. Siglar v.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-41200
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Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A district court
abuses its discretion when its decision is based on a legal error
or a clearly erroneous view of the pertinent facts. Esmark
Apparel, Inc. v. James, 10 F.3d 1156, 1163 (5th Cir. 1994).
Stephenson argues that the district court erred by
dismissing his claims for the destruction of his personal
property because he cannot bring an action against the State
under state law for the deprivation. A prisoner may not bring a
federal claim for deprivation of property through the “random and
unauthorized” acts of government officers, whether negligent or
intentional, when state law provides an adequate remedy.
Sheppard v. La. Bd. of Parole, 873 F.2d 761, 763 (5th Cir. 1989)
(quoting Hudson v. Palmer, 468 U.S. 517, 533-35 (1984)). Texas
has adequate postdeprivation remedies for the confiscation or
destruction of property, such as a tort action for conversion
against individual defendants. See Cathey v. Guenther, 47 F.3d
162, 164 (5th Cir. 1995). The district court did not abuse its
discretion by dismissing Stephenson’s claims for the destruction
of his personal property as frivolous. See Siglar, 112 F.3d at
193. Accordingly, we affirm this portion of the district court’s
judgment.
Stephenson contends that his complaint stated a nonfrivolous
retaliation claim against Officer Harrison. In his complaint,
Stephenson alleged that Officer Harrison harassed him and
destroyed his family photographs in retaliation for Stephenson
No. 04-41200
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suing one of his colleagues. The district court determined that
Stephenson’s retaliation claim was frivolous because the
retaliatory action allegedly taken by Officer Harrison was not an
independent constitutional violation. However, a retaliatory
action can be actionable if it is taken in retaliation for the
exercise of a constitutional right even if it is not a
constitutional violation in the absence of the improper motive.
See Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995).
Stephenson’s complaint stated a nonfrivolous claim that Officer
Harrison retaliated against him for exercising his right of
access to the courts. See Hart v. Hairston, 343 F.3d 762, 764
(5th Cir. 2003). The district court abused its discretion by
dismissing Stephenson’s retaliation claim against Officer
Harrison. See Esmark, 10 F.3d at 1163. Accordingly, we vacate
the district court’s dismissal of this retaliation claim and
remand for further proceedings in accordance with this opinion.
Stephenson also alleges that Officer Harrison retaliated
against him for complaining about his harassment to higher
ranking prison officials. Because Stephenson did not raise this
factual allegation below, we have not considered it. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999).
AFFIRMED IN PART, VACATED AND REMANDED IN PART.