Van Brewer v. Lawanda Hightower ( 2016 )

Case: 14-20747 Document: 00513331797 Page: 1 Date Filed: 01/06/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-20747 FILED
Summary Calendar
January 6, 2016
Lyle W. Cayce
Clerk
VAN LEE BREWER,
Plaintiff-Appellant
v.
LAWANDA HIGHTOWER; Property Officer; JEREMY T. RAYMOND, SOTP
Case Manager; BRAD LIVINGSTON, Director of TX Department of Criminal
Justice; TONA R. BUTLER; LINDSEY J. BROWN,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CV-94
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
Van Lee Brewer, Texas prisoner # 527494, appeals following the district
court’s dismissal of his 42 U.S.C. § 1983 complaint alleging a denial of property
without due process and retaliation claims. We review the district court’s
grant of the defendants’ motion for summary judgment de novo, applying the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-20747
same standards as the district court. Dillon v. Rogers, 596 F.3d 260, 266 (5th
Cir. 2010).
For the intentional deprivation of property to give rise to a due process
violation, the deprivation must have been officially authorized and the plaintiff
must challenge both the deprivation and the procedure under which it was
authorized. See Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 821-22
(5th Cir. 2007) (citing Parratt v. Taylor, 451 U.S. 527, 541-44 (1981), overruled
in part by Daniels v. Williams, 474 U.S. 327 (1986), and Hudson v. Palmer, 468
U.S. 517, 533 (1984)). Brewer never asserted that he was deprived of his
property as the result of an unconstitutional storage policy; therefore, his
argument that the district court erred by applying the Parratt/Hudson
analysis to his claim is without merit. See Allen v. Thomas, 388 F.3d 147, 148-
49 (5th Cir. 2004).
Brewer’s argument that he had no adequate post-deprivation remedy is
without merit. See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). In
addition to administrative relief, Texas’s tort of conversion provides adequate
state post-deprivation remedies to prisoners who claim due process violations
based on deprivation of their property. Murphy v. Collins, 26 F.3d 541, 543-44
(5th Cir. 1994); see also TEX. GOV’T CODE §§ 501.007, 501.008.
As the party opposing summary judgment of his retaliation claim,
Brewer was required to identify specific evidence in the record and to articulate
the precise manner in which the evidence supported his claim. See Ragas v.
Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). He was required
to show, inter alia, a retaliatory adverse act and a retaliatory motive. See
Bibbs v. Early, 541 F.3d 267, 270 (5th Cir. 2008). Brewer failed to make this
showing; therefore, the district court properly granted the defendants’ motion
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for summary judgment. See Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.
1996).
In light of the foregoing, we do not reach the merits of Brewer’s
arguments concerning Eleventh Amendment immunity and the exhaustion of
administrative remedies. See Spiller v. City of Tex. City, Police Dep’t, 130 F.3d
162, 167 (5th Cir. 1997). We find no abuse of discretion in the district court’s
denial of Brewer’s discovery requests. See McCreary v. Richardson, 738 F.3d
651, 654 (5th Cir. 2013).
AFFIRMED.
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