* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

July 22, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41200

Summary Calendar

 

RUSSELL STEPHENSON,

Plaintiff-Appellant,

versus

A VELASQUEZ, Warden; HARRISON, Officer;

BENNETT, Lieutenant,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:03-CV-443

--------------------

Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

Russell Stephenson, Texas prisoner #432028, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 action as

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). He maintains

that 28 U.S.C. § 1915(e)(2) was not applicable to this case

because the district court ordered him to pay the full filing fee

in installments. This contention is without merit. See 28

U.S.C. § 1915(e)(2). We review a dismissal as frivolous under 28

U.S.C. § 1915(e)(2)(B)(i) for abuse of discretion. Siglar v.
No. 04-41200

-2-

Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A district court

abuses its discretion when its decision is based on a legal error

or a clearly erroneous view of the pertinent facts. Esmark

Apparel, Inc. v. James, 10 F.3d 1156, 1163 (5th Cir. 1994). 

Stephenson argues that the district court erred by

dismissing his claims for the destruction of his personal

property because he cannot bring an action against the State

under state law for the deprivation. A prisoner may not bring a

federal claim for deprivation of property through the “random and

unauthorized” acts of government officers, whether negligent or

intentional, when state law provides an adequate remedy. 

Sheppard v. La. Bd. of Parole, 873 F.2d 761, 763 (5th Cir. 1989)

(quoting Hudson v. Palmer, 468 U.S. 517, 533-35 (1984)). Texas

has adequate postdeprivation remedies for the confiscation or

destruction of property, such as a tort action for conversion

against individual defendants. See Cathey v. Guenther, 47 F.3d

162, 164 (5th Cir. 1995). The district court did not abuse its

discretion by dismissing Stephenson’s claims for the destruction

of his personal property as frivolous. See Siglar, 112 F.3d at

193. Accordingly, we affirm this portion of the district court’s

judgment. 

Stephenson contends that his complaint stated a nonfrivolous

retaliation claim against Officer Harrison. In his complaint,

Stephenson alleged that Officer Harrison harassed him and

destroyed his family photographs in retaliation for Stephenson
No. 04-41200

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suing one of his colleagues. The district court determined that

Stephenson’s retaliation claim was frivolous because the

retaliatory action allegedly taken by Officer Harrison was not an

independent constitutional violation. However, a retaliatory

action can be actionable if it is taken in retaliation for the

exercise of a constitutional right even if it is not a

constitutional violation in the absence of the improper motive. 

See Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995). 

Stephenson’s complaint stated a nonfrivolous claim that Officer

Harrison retaliated against him for exercising his right of

access to the courts. See Hart v. Hairston, 343 F.3d 762, 764

(5th Cir. 2003). The district court abused its discretion by

dismissing Stephenson’s retaliation claim against Officer

Harrison. See Esmark, 10 F.3d at 1163. Accordingly, we vacate

the district court’s dismissal of this retaliation claim and

remand for further proceedings in accordance with this opinion.

Stephenson also alleges that Officer Harrison retaliated

against him for complaining about his harassment to higher

ranking prison officials. Because Stephenson did not raise this

factual allegation below, we have not considered it. See

Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.

1999). 

AFFIRMED IN PART, VACATED AND REMANDED IN PART.