Eller v. Cole

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 2, 2023
• Docket: 23-50018
• Status: Unpublished

Opinion

Case: 23-50018 Document: 00516953659 Page: 1 Date Filed: 11/02/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50018 Summary Calendar FILED ____________ November 2, 2023 Lyle W. Cayce Clint Harrison Eller, Clerk

Plaintiff—Appellant,

versus

CO Gary W. Cole; Pamela G. Taylor; Lt. FNU Simmons; Ginger Campos; Michael Alsobrook,

Defendants—Appellees. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 6:22-CV-857 ______________________________

Before Barksdale, Southwick, and Graves, Circuit Judges. Per Curiam: * Proceeding pro se and in forma pauperis, Clint Harrison Eller, Texas prisoner # 2159361, challenges the sua sponte dismissal of his complaint, under 42 U.S.C. § 1983, for failure to state a claim under 28 U.S.C. § 1915(e). Eller asserts he suffered an unconstitutional deprivation of property when

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-50018 Document: 00516953659 Page: 2 Date Filed: 11/02/2023

No. 23-50018

defendants failed to properly secure his possessions during his hospitalization. The dismissal is reviewed de novo, applying the same standard applicable to dismissals under Federal Rule of Civil Procedure 12(b)(6) (failure to state claim). E.g., Black v. Warren, 134 F.3d 732, 733–34 (5th Cir. 1998). A complaint fails to state a claim when it does not contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face”. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Pro se filings are construed liberally. E.g., Jaco v. Garland, 24 F.4th 395, 400 (5th Cir. 2021). The Parratt/Hudson doctrine precludes Eller from pursuing his deprivation of property claim under § 1983. See Parratt v. Taylor, 451 U.S. 541, 541–44 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327, 330– 31 (1986); Hudson v. Palmer, 468 U.S. 517, 533 (1984). “Under the Parratt/Hudson doctrine, 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) (citation omitted). Eller’s complaint alleged the deprivation of his property was random and unauthorized by applicable prison procedure. The Texas tort of conversion provides an adequate post-deprivation remedy to prisoners claiming due- process violations based on deprivation of their property. E.g., Murphy v. Collins, 26 F.3d 541, 543–44 (5th Cir. 1994). Eller also fails to state a claim under § 1983 that the defendant supervisor is liable under a supervisory- liability theory. See Thompkins v. Belt, 828 F.2d 298, 303–04 (5th Cir. 1987) (“Under [§] 1983, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability.”). AFFIRMED.