Agim v. Scroggins

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 12, 2002
• Docket: 01-41153
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41153 Conference Calendar

CHIMA AGIM,

Plaintiff-Appellant,

versus

UNIDENTIFIED LUMPKIN, Captain, Gurney Transfer Unit; UNIDENTIFIED SCROGGINS,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:01-CV-312 -------------------- April 11, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Chima Agim, Texas prisoner # 870112, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous

and for failure to state a claim. Agim argues that the district

court erred as follows: (1) in holding that Texas provided

adequate post-deprivation remedies; (2) by not issuing a

questionnaire to investigate the dismissal of his state claim;

and (3) in denying his motion for appointment of counsel. We

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41153 -2-

review de novo the dismissal for failure to state a claim. See

Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).

We hold that Agim is prevented by the Parratt/Hudson

doctrine from pursuing a confiscation of property claim in

federal court. Parratt v. Taylor, 451 U.S. 527, 541-44 (1981);

Hudson v. Palmer, 468 U.S. 517, 533 (1984). A state

post-deprivation remedy is not inadequate simply because the

state court determines that a prisoner has forfeited his rights

to seek recovery under state procedural laws. See Holloway v.

Walker, 784 F.2d 1287, 1293 (5th Cir. 1986). Because we hold

that state post-deprivation remedies were adequate, we also

reject Agim’s arguments that the district court should have

issued a questionnaire and that it abused its discretion in

denying his motion to appoint counsel.

Agim’s appeal is without arguable merit and is therefore

dismissed as frivolous. See 5TH CIR. R. 42.2. Agim is warned

that the dismissal of this appeal as frivolous counts as a strike

for purposes of 28 U.S.C. § 1915(g), in addition to the strike

for the district court's dismissal. See Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996) (holding dismissals as frivolous in

the district courts and the court of appeals count as strikes for

28 U.S.C. § 1915(g) purposes). We caution Agim that once he

accumulates three strikes, he may not 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 physical injury. See 28 U.S.C. § 1915(g).

DISMISSED; THREE-STRIKES WARNING ISSUED.