Hernandez v. Egwe ( 2021 )

Case: 20-40089 Document: 00515792990 Page: 1 Date Filed: 03/23/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 23, 2021
No. 20-40089 Lyle W. Cayce
Summary Calendar Clerk
Abelino Hernandez,
Plaintiff—Appellant,
versus
Emmanuel Egwe; Timothy Myers,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:19-CV-168
Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
Proceeding pro se and in forma pauperis, Abelino Hernandez, Texas
prisoner # 1954219, challenges the dismissal, for failure to state a claim and
as frivolous under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and (i), of his complaint
pursuant to 42 U.S.C. § 1983. Hernandez maintains he suffered an
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-40089 Document: 00515792990 Page: 2 Date Filed: 03/23/2021
No. 20-40089
unconstitutional deprivation of property when Officer Egwe violated prison
procedure for packing inmate property, resulting in the theft of several of
Hernandez’ possessions.
Adopting a magistrate judge’s report and recommendation, the
district court dismissed Hernandez’ complaint for failure to state a claim and
as frivolous under 28 U.S.C. §§ 1915(e). Because the court referred to both
statutory provisions, our review is de novo. See Samford v. Dretke, 562 F.3d
674, 678 (5th Cir. 2009). A claim is frivolous if it lacks any arguable basis in
law or fact. Id.
Hernandez is prevented by the Parratt-Hudson doctrine from
pursuing a confiscation-of-property claim pursuant to § 1983. See Parratt v.
Taylor, 451 U.S. 527, 541–44 (1981), overruled in part on other grounds, Daniels
v. Williams, 474 U.S. 327, 328 (1986); Hudson v. Palmer, 468 U.S. 517, 533
(1984). Parratt and Hudson, considered together, hold when plaintiff alleges
a deprivation of property without due process of law “by the negligent or
intentional actions of a state officer that are random and unauthorized”, a
post-deprivation tort cause of action in state law is sufficient to satisfy due-
process requirements. Sheppard v. Louisiana Bd. of Parole, 873 F.2d 761, 763
(5th Cir. 1989) (citation and internal quotation marks omitted) (emphasis in
original). Hernandez’ complaint alleged the deprivation of his property was
random and unauthorized by applicable prison procedure, and he does not
dispute the court’s finding in this regard. Accordingly, Texas has adequate
post-deprivation remedies—such as the tort of conversion—for the
confiscation of a prisoner’s property. Murphy v. Collins, 26 F.3d 541, 543–44
(5th Cir. 1994) (“A state’s failure to follow its own procedural regulations
does not constitute a violation of due process . . . if constitutional minima
have nevertheless been met.”) (cleaned up).
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Case: 20-40089 Document: 00515792990 Page: 3 Date Filed: 03/23/2021
No. 20-40089
The district court’s dismissal of Hernandez’ complaint counts as one
strike under 28 U.S.C. § 1915(g). See Alexander v. Tex. Dep’t of Crim. Just.,
951 F.3d 236, 241 (5th Cir. 2020). The instant appeal is similarly meritless
and is, therefore, dismissed as frivolous and counts as a second strike. See
5th Cir. R. 42.2. Hernandez is warned: if he accumulates three strikes,
he will no longer be allowed to proceed 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 bodily injury. See 28 U.S.C. § 1915(g).
DISMISSED; Strike warning ISSUED.
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