Hernandez v. Cooper

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 19, 2021
• Docket: 20-40607
• Status: Unpublished

Opinion

Case: 20-40607 Document: 00516100698 Page: 1 Date Filed: 11/19/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED No. 20-40607 November 19, 2021 Summary Calendar Lyle W. Cayce Clerk

Abelino Hernandez,

Plaintiff—Appellant,

versus

Karry Cooper,

Defendant—Appellee.

Appeal from the United States District Court for the Eastern District of Texas No. 9:19-CV-167

Before Smith, Stewart, and Graves, Circuit Judges. Per Curiam:*

Proceeding pro se and in forma pauperis, Abelino Hernandez, Texas prisoner #1954219, challenges the dismissal, for failure to state a claim and as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), of his 42 U.S.C. § 1983 complaint. Hernandez maintains that he suffered an unconstitutional depri-

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin- ion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-40607 Document: 00516100698 Page: 2 Date Filed: 11/19/2021

No. 20-40607

vation of property when Officer Karry Cooper violated prison procedure for packing inmate property, resulting in the theft of several of Hernandez’s recently purchased stamps. Our review is de novo. See Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009). Hernandez is prevented by the Parratt-Hudson doctrine from pursu- ing a confiscation-of-property claim using § 1983. See Parratt v. Taylor, 451 U.S. 527, 541−44 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Hudson v. Palmer, 468 U.S. 517, 533 (1984). Parratt and Hudson, considered together, hold that when a plaintiff alleges a deprivation of property without due process of law “by the negligent or intentional actions of a state officer that are random and unauthorized,” a post-deprivation tort cause of action in state law is sufficient to satisfy due process. Sheppard v. La. Bd. of Parole, 873 F.2d 761, 763 (5th Cir. 1989) (internal quotation marks and citation omitted). Hernandez’s complaint alleged that the deprivation of his property was random and unauthorized by applicable prison procedure. Texas has adequate post-deprivation remedies—such as the tort of conversion—for the confiscation of a prisoner’s property. Murphy v. Collins, 26 F.3d 541, 543−44 (5th Cir. 1994). Therefore, the district court did not err in its determination that the complaint was frivolous and failed to state a claim. See Samford, 562 F.3d at 678. For the first time on appeal, Hernandez contends that his grievances were not properly investigated because the video footage was not examined. We do not consider issues raised for the first time on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). Because Hernandez has not shown that the district court erred in dis- missing his claims, he has not established that he will present a non-frivolous issue on appeal, so the appeal is DISMISSED as frivolous. See 5th Cir.

2 Case: 20-40607 Document: 00516100698 Page: 3 Date Filed: 11/19/2021

R. 42.2; Howard v. King, 707 F.2d 215, 219−20 (5th Cir. 1983). The dismissal of the appeal and the district court’s dismissal of the complaint count as two strikes under 28 U.S.C. § 1915(g). See 5th Cir. R. 42.2; Alexander v. Tex. Dep’t of Crim. Just., 951 F.3d 236, 241 (5th Cir. 2020). Hernandez has previously garnered two additional strikes, for a new total of four. See Hernandez v. Egwe, No. 20-40089, at 3 (5th Cir. Mar. 23, 2021) (unpublished). He is therefore barred from proceeding in forma pau- peris 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 § 1915(g).