Alonzo Seay, Jr. v. Kenneth Hutto

Case: 11-41259 Document: 00511925826 Page: 1 Date Filed: 07/18/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 18, 2012
No. 11-41259
Summary Calendar Lyle W. Cayce
Clerk
ALONZO ALVIN SEAY, JR.,
Plaintiff-Appellant
v.
KENNETH HUTTO, Captain; VIRGLE E. MILLER, JR., Lieutenant; ALVIN L.
HARRIS, Lieutenant; SHANE D. LUNA; STEVEN R. NEAL, Sergeant;
PATRICK D. DICKENS, Captain; DANIEL D. DICKERSON, Major; MICHAEL
J. BUTCHER, Warden; TIMOTHY LESTER, Warden; TIMOTHY C. SIMMONS,
Warden,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:11-CV-73
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Alonzo Alvin Seay, Jr., Texas prisoner # 1223361, appeals from the
dismissal of his 42 U.S.C. § 1983 complaint as frivolous pursuant to 28 U.S.C.
§ 1915A(b)(1). In his district court pleadings, Seay alleged generally that he had
been harassed by prison gangs for years, with the assistance of prison officials,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41259
in order to extort protection money from him. The district court considered only
the claims raised in Seay’s initial complaint and denied him leave to amend his
complaint.
We review the dismissal of a complaint under § 1915A(b)(1) de novo,
accepting the facts alleged in the complaint as true and viewing them in the
light most favorable to the plaintiff. Green v. Atkinson, 623 F.3d 278, 280 (5th
Cir. 2010). A complaint is frivolous if it lacks an arguable basis in law or fact.
Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001). We may affirm the
dismissal of Seay’s complaint on any basis supported by the record. See Harper
v. Showers, 174 F.3d 716, 719 (5th Cir. 1999) (affirming dismissal of claim where
district court failed to address claim, but dismissed complaint, including that
claim, as frivolous).
Seay argues that the defendants engaged in a premeditated extortion plot
by taking his personal property on November 19, 2010, and not documenting the
taking, which he alleges violates prison regulations. According to Seay, staff
attempted to force him to sign inventory papers but he would not do so when he
noticed items missing, and he received no inventory confiscation papers.
Additionally, he contends that he was deprived of due process when the funds
were taken from his prison account on February 7, 2011, regardless whether he
could prevail in a separate suit or whether the funds were restored to his
account after his disciplinary conviction was reversed, as he would be entitled
to nominal damages.
He also contends that the magistrate judge erred by failing to allow him
to amend his complaint to prove a pattern of property deprivations establishing
an unofficial policy or practice. As to deprivations addressed in his amended
district court pleadings, he contends that prison officials retaliated against him
for failing to pay for protection by arranging to have his cell left open on August
3 and 6, 2011, so gang members could steal his personal property.
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The denial of Seay’s motion to amend as to his property deprivation claims
was an abuse of discretion. See Foman v. Davis, 371 U.S. 178, 182 (1962). The
Parratt/Hudson1 doctrine provides that when a plaintiff alleges that he has been
deprived of his property, without due process of law, by the negligent or
intentional actions of a state officer that are “random and unauthorized,” a
postdeprivation tort cause of action in state law is sufficient to satisfy the
requirements of due process. Sheppard v. Louisiana Bd. of Parole, 873 F.2d 761,
763 (5th Cir. 1989) (quoting Hudson, 468 U.S. at 533-35). The Parratt/Hudson
doctrine is applicable if the following conditions exist: (1) the deprivation was
unpredictable or unforeseeable; (2) predeprivation process would have been
impossible or impotent to counter the state actors’ particular conduct; and (3) the
conduct was unauthorized in the sense that it was not within the officials’
express or implied authority. Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir.
1991) (en banc). Conduct is not considered random and unauthorized if the
State has delegated to the defendants the authority to cause the deprivation that
is contested. Allen v. Thomas, 388 F.3d 147, 149 & n.1 (5th Cir. 2004).
Seay alleges that the November 19, 2010, deprivation and failure to
inventory his property violated prison policy. He alleges that he was told that
prison administrators had directed that his cell be left open in August 2011. But
he does not allege that prison officials were delegated authority under state law,
regulation, or policy to direct that a prisoner’s property be stolen by other
inmates. He therefore has not alleged that his property was taken pursuant to
an official policy that would render the Parratt/Hudson doctrine inapplicable.
Because Texas has adequate postdeprivation remedies for the confiscation of
prisoner property, Seay may not prevail on this claim in the instant § 1983 suit.
See Thompson v. Steele, 709 F.2d 381, 383 (5th Cir. 1983).
1
Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v. Taylor, 451 U.S. 527 (1981),
overruled in part by Daniels v. Williams, 474 U.S. 327 (1986).
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The deprivation that was first noticed on February 7, 2011, was not
explicitly addressed by the district court. But this court may affirm the implicit
rejection of Seay’s claim. Seay alleges that he prevailed at Step 2 of the
grievance procedure concerning his disciplinary conviction and that the funds
were restored to his account on the day that he filed his federal lawsuit. Because
the disciplinary conviction was reversed and the funds were restored to his
account, the district court could provide no relief and the claim was moot to the
extent Seay sought actual damages. See Spencer v. Kemna, 523 U.S. 1, 7 (1998).
Additionally, Seay explicitly conceded in the district court that he had not
exhausted administrative remedies as to the February 7, 2011, deprivation.
Exhaustion is required before a prisoner may proceed on a § 1983 claim in
district court. 42 U.S.C. § 1997e(a).
Next, Seay contends that prison gang members poisoned his food at the
behest of prison officials in retaliation for him filing a federal lawsuit; that he
was beaten frequently by his cellmate on the orders of prison officials to retaliate
for him seeking relief; that his mail was tampered with on August 22, 2011; that
he was told, in conjunction with the mail-tampering incident. that he could no
longer use the grievance system; and that he was given a mailroom pass with a
woman’s name on it and threatened with gang rape once his federal lawsuit was
dismissed. All of these claims were asserted in Seay’s amended pleadings, which
he was denied leave to file. He alleges that prison officials retaliated against
him, but the retaliatory episodes he alleges all occurred after his federal lawsuit
was filed. Apart from his property deprivation claims, all of the allegedly
conspiratorial actions of the defendants occurred after he filed his complaint. On
appeal, Seay contends that the district court erred by failing to grant him leave
to amend as to his property deprivation claims; he does not argue that the
district court erred by denying him leave to amend to add the other claims he
raises on appeal. He has failed to brief the relevant issue for appeal. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
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1987). Also, Seay does not raise any argument on appeal as to an alleged
beating by other prisoners on September 8, 2010, or as to any other attacks by
prisoners during the time period covered in his initial complaint. Nor does he
contend that the district court erred by finding that prison officials were not
deliberately indifferent to his allegations that he was attacked. Seay has failed
to brief those issues for appeal. See id.Seay argues that the magistrate judge erred by failing to apply the
doctrine of stare decisis, which he asserts dictates that a plaintiff prevails if a
defendant pays money in anticipation of a lawsuit. “Stare decisis means that
like facts will receive like treatment in a court of law.” Taylor v. Charter
Medical Corp., 162 F.3d 827, 832 (5th Cir. 1998) (internal quotation marks,
footnote, and citation omitted). It does not mean that the return of funds to
Seay’s prison account proved the constitutional violation he alleged. See id.Further, Seay suggests that the magistrate judge was biased against him
and may have recommended dismissal instead of proceeding to trial because he
withdrew his consent to have her preside over the ultimate disposition of his
case. Adverse judicial rulings are insufficient to establish bias. See Liteky v.
United States, 510 U.S. 540, 555 (1994).
For the first time on appeal, Seay argues that he was deprived of property
without due process on October 7, 2011, and that he is being deprived of access
to the appellate record in this case. We will not consider issues raised for the
first time on appeal in a civil case. See Leverette v. Louisville Ladder Co., 183
F.3d 399, 342 (5th Cir. 1999).
Seay moves for appointment of counsel. He has not demonstrated
exceptional circumstances necessitating the appointment of counsel. See Cupit
v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
Finally, the dismissal of Seay’s complaint as frivolous counts as a strike
for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387 (5th Cir. 1996). Seay is WARNED that if he accumulates three strikes, he
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may not proceed in forma pauperis in any civil action or appeal while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
AFFIRMED; APPOINTMENT OF COUNSEL DENIED; SANCTION
WARNING ISSUED.
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