Walker v. Horne ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 23, 2004
Charles R. Fulbruge III
Clerk
No. 04-30287
Summary Calendar
CALVIN WALKER
Plaintiff - Appellant
v.
PAMELA HORNE, Individually and in her
official capacity
Defendant - Appellee
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:03-CV-44
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Before KING, Chief Judge, and SMITH and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Calvin Walker, Louisiana prisoner # 407257, appeals from the
district court’s dismissal with prejudice of his 42 U.S.C. § 1983civil rights complaint as frivolous and for failure to state a
claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii). Walker
argues that the deprivation of his watch and wedding band
constituted a due process and equal protection violation as well
as cruel and unusual punishment. He has abandoned on appeal his
*
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this opinion should not be published and is not precedent except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. 04-30287
-2-
argument that the appellee’s actions constituted malfeasance in
office and armed robbery and that he is entitled to injunctive
relief. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
Pursuant to § 1915(e)(2)(B), a district court “shall”
dismiss a case if it determines that the case is frivolous or
fails to state a claim upon which relief can be granted. A
dismissal as frivolous under § 1915(e)(2)(B) is reviewed for
abuse of discretion, while a dismissal under that statute for
failure to state a claim is reviewed de novo. Newsome v.
E.E.O.C., 301 F.3d 227, 231 (5th Cir.), cert. denied, 537 U.S.
1049 (2002).
Even employing a de novo standard of review, Walker fails to
establish a constitutional violation with respect to his claims.
Walker’s due process argument fails because Louisiana provides a
post-deprivation remedy for property loss. See Parratt v.
Taylor, 451 U.S. 527, 541-44 (1981); Hudson v. Palmer, 468 U.S.
517, 533 (1984); LA. CIV. CODE ANN. art 2315 (West 1997).
Walker argues that he did not follow the proper post-deprivation
procedures due to ineffective assistance of inmate counsel. This
argument will not be considered for the first time on appeal.
See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th
Cir. 1999).
Walker’s equal protection challenge fails on the ground that
it is conclusional in nature. See Koch v. Puckett, 907 F.2d 524,
No. 04-30287
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530 (5th Cir. 1990). Walker does not allege facts to support a
claim of cruel and unusual punishment. His allegation that the
appellee forcefully removed his property raises only a de minimus
use of force. See Hudson v. McMillian, 503 U.S. 1, 9-10 (1992).
Walker’s appeal is without arguable merit and is dismissed
as frivolous. See 5TH CIR. R. 42.2; see also Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983). In Walker v. Louque,
No. 99-31026 (5th Cir. Apr. 12, 2000) (unpublished), this court
dismissed a prisoner civil rights appeal by Walker and issued a
28 U.S.C. § 1915(g) sanctions warning. With this court’s
dismissal of the instant appeal, Walker has now accumulated three
“strikes” for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Walker is now
barred from proceeding in forma pauperis in any civil action or
appeal filed while he is incarcerated or detained in any facility
unless he is under imminent danger of serious physical injury.
See 28 U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) SANCTIONS
IMPOSED.