Cannon v. Howard ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-11424
Summary Calendar
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JAMES EARL CANNON,
Plaintiff-Appellant,
versus
W. HOWARD, Warden, in her
Individual Capacity;
C. HURST, Hospital Administrator,
in his Individual Capacity,
Defendants-Appellees.
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Appeal from the United States District Court for the
Northern District of Texas
USDC No. 5:99-CV-266-C
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June 30, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
James Earl Cannon, Texas prisoner # 607764, appeals the
district court’s dismissal of his civil rights complaint against
W. Howard and C. Hurst as frivolous. He asserts that he should
have been given the opportunity to provide additional information
to the court. A dismissal of an in forma pauperis (IFP) complaint
as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) is reviewed
for abuse of discretion. Siglar v. Hightower, 112 F.3d 191, 193
(5th Cir. 1997). Because the district court did not request
*
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this opinion should not be published and is not precedent except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.
additional information from Cannon to clarify his complaint, the
appellate court must determine whether Cannon’s allegations, if
developed further, “might have presented a nonfrivolous section
1983 claim.” Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
Cannon asserts that the district court improperly
characterized his claims against Howard as interference with access
to the courts. He maintains that he was denied due process because
he had no notice that Howard could dismiss his prisoner grievance
after Cannon refused to grant an extension of time for the prison
to file a response. Cannon was aware of the consequences of his
refusal to grant the extension through the extension request, and
his due process rights were not violated.
Cannon also asserts that Howard misused her power by
dismissing his grievance. To the extent he asserts that he was
denied access to the prison grievance procedure, this could be a
cognizable § 1983 claim. Jackson v. Cain, 864 F.2d 1235, 1248-49
(5th Cir. 1989). However, Cannon’s own refusal to grant the
extension prevented him from proceeding with the grievance
proceedings, not Howard’s interference. To the extent he asserts
that Howard violated prison policies, such an alleged violation
does not give rise to a constitutional violation by itself.
Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). To the
extent Cannon argues that Howard had no authority to create such a
policy, he has provided no support for this belief.
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Cannon also contends that Howard’s extension request
constituted a “threat” and that the dismissal penalized him for
filing a grievance. The language of the extension request and the
circumstances under which Cannon was requested to accept an
extension in no way constitute a threat. Although prison officials
may not retaliate against a prisoner for using a prison grievance
procedure, see Jackson, 864 F.2d at 1248-49, Howard’s dismissal of
Cannon’s grievance was not a punishment or retaliation for Cannon’s
initial filing of a grievance.
Cannon also asserts that the district court abused its
discretion in dismissing his complaint against Hurst with prejudice
under Parratt v. Taylor, 451 U.S. 527, 541-44 (1981), overruled in
part not relevant here, Daniels v. Williams, 474 U.S. 327 (1986).
He contends that Hurst’s actions were intentional and that Hurst
converted money from Cannon’s prison account. An intentional
taking of property may also survive a due process challenge if an
adequate postdeprivation remedy exists. Hudson v. Palmer, 468 U.S.
517, 533 (1984); Sheppard v. Louisiana Bd. of Parole, 873 F.2d 761,
763 (5th Cir. 1989). Cannon has cited no authority for the
assertion that the Parratt/Hudson doctrine does not apply to the
taking of money as well as personal property.
Cannon has not shown that the district court abused its
discretion by dismissing his civil rights complaint as frivolous.
The district court’s dismissal is
A F F I R M E D.
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