Mayberry v. Hefner

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-10130 Summary Calendar

MARCUS DWAYNE MAYBERRY,

Plaintiff-Appellant,

versus

TABITHA R. HEFNER; GARY DODDS; CRAIG A. RAINES; EDDIE WHEELER,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 1:96-CV-284-BA - - - - - - - - - - December 11, 1997 Before JONES, SMITH and STEWART, Circuit Judges.

PER CURIAM:*

Marcus Dwayne Mayberry, Texas prisoner #605575, appeals the

magistrate judge’s dismissal of 42 U.S.C. § 1983 complaint for

failure to state a claim pursuant to the doctrine established in

Parratt v. Taylor, 451 U.S. 527 (1981), and Hudson v. Palmer, 468

U.S. 517 (1984). Mayberry argues that his claim against Tabitha

R. Hefner for the recovery of his radio falls outside the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-10130 -2-

Parratt/Hudson doctrine because Hefner destroyed the radio

pursuant to an administrative directive.

The magistrate judge dismissed Mayberry’s claim for failure

to state a claim but did not cite authority for its dismissal.

The dismissal was prior to service of process or any Fed. R. Civ.

P. 12(b)(6) motion; therefore, the most appropriate authority for

such a dismissal is 28 U.S.C. § 1915(e)(2)(B)(ii). This court

reviews de novo the lower court’s ruling on a Rule 12(b)(6)

motion. Jackson v. City of Beaumont Police Dep’t, 958 F.2d 616,

618 (5th Cir. 1992). Applying that standard here, see Mitchell

v. Farcass, 112 F.3d 1483, 1485, 1489-90 (11th Cir. 1997), we

conclude that the magistrate judge prematurely dismissed

Mayberry’s claims against Hefner.

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.” See Zinermon v.

Burch, 494 U.S. 113, 115 (1990). The Parratt/Hudson doctrine

does not apply to Hefner because, accepting Mayberry’s

allegations as true, Hefner destroyed the radio pursuant to an

administrative directive and not a random, unauthorized act by a

state employee. See Logan v. Zimmerman Brush Co., 455 U.S. 422,

435-36 (1982). No. 97-10130 -3-

In addition, the Parratt/Hudson doctrine, which applies to

procedural due process claims, does not apply to Mayberry’s claim

of retaliation by Hefner for his use of the state-established

prison grievance procedures. Zinermon v. Burch, 494 U.S. 113,

125-28; Thibodeaux v. Bordelon, 740 F.2d 329, 333 (5th Cir.

1984); Jackson v. Cain, 864 F.2d 1235, 1249 & n.5 (5th Cir. 1989)

(retaliation claim premised upon use of grievance system is a

prima facie violation of substantive due process). Accordingly,

we REVERSE the magistrate judge’s dismissal of Mayberry’s claims

against Hefner and REMAND the case to the magistrate judge for

further proceedings. The motions filed by Mayberry in this court

are DENIED.

REVERSED AND REMANDED.