Wilson v. Johnson ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 27, 2005
Charles R. Fulbruge III
Clerk
No. 04-20495
Summary Calendar
BHAKTA COREY WILSON,
Plaintiff-Appellant,
versus
GARY JOHNSON, Warden; S. SCHUMACHER; KELLI WARD; STAPLES, Warden;
DAVIS, Correctional Officer; WILKERSON, Correctional Officer;
SONSEL, Lieutenant; BOOHER, Sergeant; WEST, Correctional Officer,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-2007
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Before REAVLEY, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Bhakta Corey Wilson, Texas prisoner number 579215, filed the
instant 42 U.S.C. § 1983 suit to seek redress for the alleged
improper seizure and destruction of his property. The district
court dismissed Wilson’s suit as frivolous, and he appeals that
dismissal. We review this dismissal for abuse of discretion
only. Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002). To
raise a cognizable claim under 42 U.S.C. § 1983, one must show
*
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this opinion should not be published and is not precedent except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. 04-20495
-2-
that his constitutional rights were violated by a state actor.
Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir.
1994).
Wilson has not shown that the district court abused its
discretion by dismissing his suit. Because Texas provides an
adequate postdeprivation remedy for confiscation of prisoners’
property, Wilson’s constitutional rights were not implicated by
the seizure of his property. See Cathey v. Guenther, 47 F.3d
162, 164 (5th Cir. 1995); see also TEX. GOVT CODE ANN. § 27.031(b)
& § 28.003(a) (Vernon 2004).
To the extent that Wilson attempted to recover from certain
defendants under a theory of vicarious liability, the district
court did not abuse its discretion in dismissing these claims.
See Stewart v. Murphy, 174 F.3d 530, 536 (5th Cir. 1999).
Because Wilson has not shown that the disputed seizure violated
his constitutional rights, he also has not raised a viable claim
of supervisory liability. See Roberts v. City of Shreveport,
397 F.3d 287, 291 (5th Cir. 2005); Thompkins v. Belt, 828 F.2d
298, 304 (5th Cir. 1987). Finally, Wilson’s arguments concerning
the resolution of his grievances are insufficient to show the
violation of a constitutional right. See Geiger v. Jowers,
__ F.3d __, 2005 WL 639623 at *2 (5th Cir. Mar. 21, 2005).
Because Wilson has not shown a violation of his
constitutional rights, which is an essential element of a
42 U.S.C. § 1983 suit, he has not has not shown that the district
No. 04-20495
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court erred in dismissing his complaint as frivolous. See
Johnson, 38 F.3d at 200. Accordingly, his appeal is without
arguable merit and is therefore frivolous. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983). This dismissal of a
frivolous appeal constitutes one strike against Wilson for
purposes of 28 U.S.C. § 1915(g), as does the district court’s
dismissal of his complaint. See Adepegba v. Hammons, 103 F.3d
383, 388 (5th Cir. 1996). If one other district court action or
appeal filed by Wilson is dismissed as frivolous, he will be
barred from bringing a civil action or appeal as a prisoner
proceeding in forma pauperis unless he is under imminent danger
of serious physical injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS. 5TH CIR. R. 42.2. SANCTION
WARNING ISSUED.