Coomer v. Roth

Case: 21-10182 Document: 00516158438 Page: 1 Date Filed: 01/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 7, 2022
No. 21-10182
Summary Calendar Lyle W. Cayce
Clerk
Tracey Harris Coomer,
Plaintiff—Appellant,
versus
Mark Roth; Warden Arnold; Daisha B. Simmons; Dawn
A. Andersen; Mickenzie M. Gill; Julie A. Marguez;
Charles Hufford; Lori Davis; Major NFN Ivey, Captain
A. Chisum; Sergeant Anthony R. Marquez, Shane
Hembree,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:18-CV-121
ON PETITION FOR REHEARING
Before Smith, Higginson, and Willett, Circuit Judges.
Per Curiam:*
*
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opinion should not be published and is not precedent except under the limited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: 21-10182 Document: 00516158438 Page: 2 Date Filed: 01/07/2022
The panel has considered Mr. Coomer’s petition for panel rehearing
and has concluded that his argument is well taken. As a result, we now
withdraw our original panel opinion,1 replacing it with the following opinion.
Tracey Harris Coomer, Texas prisoner # 1473063, filed a lawsuit
under 42 U.S.C. § 1983, claiming that prison officials confiscated and
destroyed his personal property, both in violation of his right to due process
and in retaliation for his filing of grievances. He also moved for an injunction
related to additional property loss after the filing of his suit.
After granting Coomer leave to proceed in forma pauperis (IFP), the
district court screened the complaint under 28 U.S.C. § 1915A and 28 U.S.C.
§ 1915(e)(2). It ultimately dismissed the complaint with prejudice, denied
Coomer’s motion for an injunction, and imposed a strike under § 1915(g).
The district court concluded that Coomer’s complaint was filed outside the
statute of limitations and, in the alternative, that his claims were frivolous. It
also denied Coomer’s motion to proceed IFP on appeal, certifying that the
appeal was not taken in good faith.
Because Coomer’s appeal is not frivolous, his motion to proceed IFP
is GRANTED. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). We
also conclude that further briefing is unnecessary and turn to the merits. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
The dismissal of Coomer’s civil rights complaint as frivolous is
reviewed for abuse of discretion. See Rogers v. Boatright, 709 F.3d 403, 407
(5th Cir. 2013) (citing Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999)); see
1
Coomer v. Roth, No. 21-10182, 2021 WL 4714607 (5th Cir. Oct. 8, 2021) (per
curiam) (unpublished).
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No. 21-10182
also Green v. Atkinson, 623 F.3d 278, 279-80 (5th Cir. 2010). A complaint is
frivolous if it lacks (1) an arguable basis in law because “it is based on an
indisputably meritless legal theory” or (2) an arguable basis in fact because,
“after providing the plaintiff the opportunity to present additional facts when
necessary, the facts alleged are clearly baseless.” Berry, 192 F.3d at 507(internal quotation marks and citations omitted). We must assume that a
plaintiff’s factual allegations are true. Moore v. Carwell, 168 F.3d 234, 236
(5th Cir. 1999). A pro se prisoner is entitled to factually develop his
complaint before a proper determination can be made as to whether it is
frivolous. See Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994).
Here, the district court concluded that all Coomer’s claims were
barred by the two-year statute of limitations. See Gartrell v. Gaylor, 981 F.2d
254, 256 (5th Cir. 1993); Tex. Civ. Prac. & Rem. Code Ann.
§ 16.003(a). But the district court failed to give effect to the factual
allegations in Coomer’s pleadings showing that there were arguable bases to
find: (1) his cause of action accrued on or after February 23, 2016, when his
typewriter was confiscated, see Piotrowski v. City of Houston, 51 F.3d 512, 516
(5th Cir. 1995); (2) he was entitled to equitable tolling of the limitations
period while administrative proceedings were pending, see Gartrell, 981 F.2d
at 257-58; and (3) the original complaint could have been placed into the
prison mail system as early as June 16, 2018, see Houston v. Lack, 487 U.S.
266, 276 (1988). Because it was not clear from the face of the operative
pleadings that Coomer’s suit was time barred, the district court erred at this
stage in finding that Coomer’s complaint should be dismissed under the
statute of limitations. See Gartrell, 981 F.2d at 257-58. Coomer should be
given an opportunity to develop the facts regarding the timeliness of his
claims. See Eason, 14 F.3d at 9.
Alternatively, the district court found that Coomer’s several claims
were frivolous. We address these conclusions in turn.
3
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First, the district court found that Coomer’s due process claim was
barred by the Parratt/Hudson2 doctrine. The Parratt/Hudson doctrine
counsels that “a deprivation of a constitutionally protected property interest
caused by a state employee’s random, unauthorized conduct does not give
rise to a § 1983 procedural due process claim, unless the State fails to provide
an adequate postdeprivation remedy.” Allen v. Thomas, 388 F.3d 147, 149
(5th Cir. 2004) (internal quotation marks and citation omitted). The key
question here is the first part of that test: whether C/O Gill’s act of seizing
the typewriter was “random and unauthorized.”
We answered this question in Allen v. Thomas, a case with remarkably
similar facts. 388 F.3d 147 (5th Cir. 2004). Allen’s typewriter was taken
away because an informant told Johnny M. Thomas, a building security
major, that it had been altered from its original condition. Allen v. Thomas,
No. H-02-3132, 2005 WL 2076033, at *1 (S.D. Tex. Aug. 26, 2005).3
Thomas seized the typewriter “pursuant to TDCJ Administrative Directive
3.72 (‘AD 3.72’)”—the exact same prison guideline cited by the prison
official who seized Coomer’s typewriter. Id. Allen, like Coomer,
“maintain[ed] that his typewriter had not been changed from its original
condition” and that Thomas’s actions were not authorized by AD 3.72. Id.Allen also alleged that his typewriter was seized in an act of retaliation and
that he was denied due process. Id. at *2. The district court dismissed
Allen’s due process claim under the Parratt/Hudson doctrine. Allen, 388
F.3d at 149.
2
Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 541-
44 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986).
3
These facts are drawn from the district court’s opinion on remand because our
opinion did not separately recite them.
4
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We reversed. Id. We principally relied on the Supreme Court’s
decision Zinermon v. Burch, which clarified the reach of the Parratt/Hudson
doctrine. Zinermon noted that “[c]onduct is not ‘random and unauthorized’
for purposes of the Parratt/Hudson doctrine if the state ‘delegated to [the
defendants] the power and authority to effect the very deprivation
complained of.’” Id. (alteration in original) (quoting Zinermon v. Burch, 494
U.S. 113, 115 (1990)). Because the state had delegated the authority to
enforce AD 3.72 to Thomas, we concluded that Thomas’s actions were
neither random nor unauthorized, and the Parratt/Hudson doctrine did not
apply. Id. The same logic applies equally to these facts. Seeing no way to
differentiate Allen, we vacate this portion of the district court’s judgment.4
In so doing, we express no judgment as to the ultimate merits of Coomer’s
due process claim.
Next, the district court found that Coomer had stated only conclusory
claims of retaliation. However, Coomer’s complaints allege that beginning
4
We concede that our precedents have been inconsistent on this point. We have
held at least twice that the Parratt/Hudson doctrine applies where an officer fails to abide
by state law or other local regulations. See Leggett v. Williams, 277 F. App’x 498, 500 (5th
Cir. 2008); Myers v. Klevenhagen, 97 F.3d 91 (5th Cir. 1996). Both of these holdings are
therefore in conflict with Allen. Of the two, only Myers is precedential, and because it
predates Allen, it would ordinarily govern under the rule of orderliness. However, both
Leggett and Myers fail to distinguish, or even cite, the Supreme Court’s decision in
Zinermon, which as noted above is the Supreme Court’s most recent guidance on the reach
of the Parratt/Hudson doctrine. See Zinermon, 494 U.S. at 138 (noting that conduct is not
“random and unauthorized” under the Parratt/Hudson doctrine if the state “delegated to
[the official] the power and authority to effect the very deprivation complained of”).
Courts in the Fifth Circuit “refus[e] to apply the rule of orderliness to a [decisions] that
conflict[] with an earlier, uncited Supreme Court opinion.” Gahagan v. United States
Citizenship & Immigr. Servs., 911 F.3d 298, 302 (5th Cir. 2018) (citing Wilson v. Taylor, 658
F.2d 1021, 1034–35 (5th Cir. Unit B 1981); see also United States v. Brune, 991 F.3d 652, 664
(5th Cir. 2021). We are instead bound by Allen, which considered Parratt, Hudson, and
Zinermon, and concluded that official conduct is not “random or unauthorized” merely
because officials failed to comply with state law. See Allen, 388 F.3d at 149.
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in 2015, he filed numerous grievances against Daisha B. Simmons in relation
to her purportedly unlawful confiscation of his property and refusal to let
Coomer use the law library during Saturday sessions. And he claimed that in
February 2016 and thereafter, Simmons retaliated by directing Mickenzie M.
Gill to confiscate Coomer’s typewriter from his cell and asking Dawn A.
Andersen to concoct a rule justifying a decision not to return it. Coomer
provided extensive detail relating to the overall timeline of his retaliation
claims and alleged specific facts that, taken as true, show that his retaliation
claims have an arguable basis in law and fact. See Morris v. Powell, 449 F.3d
682, 684 (5th Cir. 2006); Jones v. Greninger, 188 F.3d 322, 324–25 (5th
Cir. 1999); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995); see also Berry,
192 F.3d at 507.
Finally, the district court dismissed Coomer’s claims against Lori
Davis, Captain A. Chisum, and Warden Arnold in their supervisory
capacities. That conclusion was correct as to Davis and Chisum, as Coomer
failed to allege any facts showing that these defendants affirmatively
participated in any acts causing a constitutional deprivation or implemented
unconstitutional policies that causally resulted in a constitutional injury. See
Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011). But Coomer alleged that
Arnold convinced him to stop filing grievances against Simmons in exchange
for the return of his confiscated typewriter, which ultimately was never
returned despite Coomer’s compliance with Arnold’s request. Thus,
Coomer’s claim that Arnold played some personal role in the alleged
retaliation by causing Coomer to cease exercising his constitutional right to
file grievances is not frivolous. See Woods, 60 F.3d at 1166; see also Lozano v.
Smith, 718 F.2d 756, 768 (5th Cir. 1983).
In sum, the pleadings, on their face, were insufficient to allow the
district court to conclude at this stage that the statute of limitations barred
the action, see Gartrell, 981 F.2d at 256-58, and the pleadings show that
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Coomer’s claims of retaliation for his filing of grievances are not frivolous,
see Jones, 188 F.3d at 324-25; Berry, 192 F.3d at 507. The district court also
erred in finding that Coomer’s due process claim was barred by the
Parratt/Hudson doctrine. However, the district court did not abuse its
discretion in finding that Coomer’s claims against Davis and Chisum in their
supervisory capacities were frivolous, see Porter, 659 F.3d at 446.
Accordingly, Coomer’s petition for panel rehearing is GRANTED, the
district court’s judgment is VACATED in part and AFFIRMED in part,
and the case is REMANDED for further proceedings.
7