Hall v. Lorenz

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 30, 2002
• Docket: 02-50312
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50312 Summary Calendar

LEVENSTON HALL,

Plaintiff-Appellant,

versus

SCOTT LORENZ; PATRICK TURCK; RICHARD HATFIELD,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-01-CV-183 -------------------- August 30, 2002 Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Levenston Hall, federal prisoner #82299-080, has filed a

motion for leave to proceed in forma pauperis (IFP) on appeal,

following the district court’s dismissal of his 42 U.S.C. § 1983

action for failure to state a claim. The district court held

that Hall’s claims of unlawful arrest, illegal search and

seizure, and the wrongful deprivation of property were barred by

Heck v. Humphrey, 512 U.S. 477 (1994) and by the applicable

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50312 -2-

statute of limitations. By moving for IFP status, Hall is

challenging the district court’s certification that IFP status

should not be granted on appeal because his appeal is not taken

in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.

1997).

Hall’s claims regarding his allegedly illegal arrest and

illegal search and seizure, if successful, would undermine the

validity of his felony drug conviction. Because Hall has not

shown that his drug conviction was overturned, the district

court’s dismissal of Hall’s illegal arrest and illegal search and

seizure claims as barred by Heck was not error. Heck, 512 U.S.

at 486-87.

We also reject Hall’s wrongful-deprivation claim. The

wrongful deprivation of property does not implicate the

Fourteenth Amendment if the state provides an adequate post-

deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984);

Marshall v. Norwood, 741 F.2d 761, 764 (5th Cir. 1984). Hall has

a right of action under Texas law for any alleged negligent or

intentional deprivation of property. See Thompson v. Steele, 709

F.2d 381, 383 (5th Cir. 1983); Meyers v. Adams, 728 S.W.2d 771,

772 (Tex. 1987).

Hall’s appeal is without arguable merit and is DISMISSED as

frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983). The district court’s dismissal of Hall’s

42 U.S.C. § 1983 complaint for failure to state a claim and the No. 02-50312 -3-

dismissal of the instant appeal as frivolous count as two strikes

under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d

383, 387-88 (5th Cir. 1996). We caution Hall that once he

accumulates three strikes, he may not proceed IFP 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).

APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.