1 United States Court of Appeals,

Fifth Circuit.

Nos. 95-20435, 95-20620.

Earl Wayne MYERS, Plaintiff-Appellant,

v.

Johnny KLEVENHAGEN, Sheriff, Defendant-Appellee.

Creighton DELVERNE, Plaintiff-Appellee,

v.

Johnny KLEVENHAGEN, Sheriff, Defendant-Appellant.

Oct. 11, 1996.

Appeals from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and JOLLY and BARKSDALE, Circuit Judges.

PER CURIAM:

Earl Wayne Myers, proceeding pro se, filed a 42 U.S.C. § 1983 prisoner civil rights action

against Sheriff Johnny Klevenhagen o f Harris County, Texas. Claiming to be indigent, Myers

complained that the Sheriff had violated a Tex as criminal procedure statute, as well as Myers's

constitutional rights, by debiting his inmate trust account for medical services without conducting an

indigency hearing. Creighton Delverne, another indigent inmate, also brought suit against Sheriff

Klevenhagen under section 1983 for a $3.00 debit to his trust account to cover the charge for a

prescription drug. In Myers's action, the district court granted summary judgment for the Sheriff on

the grounds that no constitutional violation had occurred and that, in any event, the Sheriff was

entitled to qualified immunit y from prosecution. In contrast, Delverne's case survived summary

judgment and was tried to the bench. Finding that Harris County had violated Delverne's Fourteenth

Amendment procedural due process rights, the trial judge rendered a final judgment for Delverne in

the amount of $3.00.

On appeal, we appointed counsel to represent Myers and Delverne, and we granted the1 At the time that these actions were filed and litigated, article 104.002(d) provided:

A person who is or was a prisoner in a county jail and received medical, dental, or

health related services shall be required to pay for such services when they are

rendered. If such prisoner cannot pay for such services because of indigence, as

defined in Chapter 61, Health and Safety Code, said county shall assist the prisoner

in applying for reimbursement through that chapter or the hospital district of which

he is a resident. A prisoner who does not meet the eligibility for assistance

payments shall remain obligated to reimburse the county for any medical, dental, or

health services provided and that county shall have authority to recover the

amount expended in a civil action.

TEX.CODE CRIM.PROC.ANN. art. 104.002(d) (Supp.1995). Although the Texas

statute authorized a county to charge all inmates (indigent and nonindigent) for medical

services, the record shows that the Harris County Sheriff's Department instructed its clinic

personnel and triage nurses by memorandum that no inmate would be denied medical

services if the inmate indicated an inability to pay the charges assessed.

2 Sheriff's unopposed motion to consol idate these factually similar, but procedurally different cases.

Based on our conclusion that the consolidated appellate record demonstrates no consti tutional

violation that is actionable under 42 U.S.C. § 1983, we affirm the grant of summary judgment for the

Sheriff in Myers's action, and we reverse the final judgment in favor of Delverne.

I

A lthough dissimilar in some respects, these cases share a common thread of facts and the

same threshold legal issue. We begin our analysis by reviewing the critical facts that are common to

both actions. The record shows that both Myers and Delverne were aware of the Harris County jail's

newly instituted policy of charging nonindigent inmates for medical care, which was authorized by

article 104.002(d) of the Texas Code of Criminal Procedure. 1 According to Myers's own handwritten

affidavit, he heard Sheriff Klevenhagen explain the policy and cite to article 104.002(d) in a television

interview that was broadcast on the local news. On the next available access date, Myers went to the

j ail law library and read the statute. After reviewing article 104.002(d), Myers concluded t hat

,

because of his indigency, he was exempt from the county's charges for medica l care. Delverne

testified at his bench trial that he had read about the county's policy of charging nonindigents for

medical service before he entered the Harris County jail in August 1992. Thereafter, both inmates

sought and received medical services while they wer e incarcerated. When these medical services2 According to the trial testimony of Mr. Don Nichols, medical administrator for the Harris

County Sheriff's Department, the county began using the original "Charge Documents" on or

about August 3, 1992, when the new medical policy was implemented. Nichols testified that

instructions regarding the new policy, written in English and Spanish, were posted in all jail cells.

These instructions advised indigent inmates that they could "either refuse to sign or write indigent

across the charge ticket." The record also contains memoranda that instructed clinic personnel

and triage nurses to write "INDIGENT" on the charge document, if the inmate believed that s/he

could not pay the charges because of indigency. Nichols further testified that the Sheriff's

Department held meetings with triage nurses to explain the new procedures.

According to Nichols, in September 1992, approximately one month after

instituting the initial charge document procedures, the county developed a new form of

charge document that contained an additional box marked "Check if indigent/unable to

pay." Nichols testified that this was done "to make it easier for inmates to declare their

indigent status by simply checking a box."

3 Major Michael William Quinn of the Harris County Sheriff's Department Support Services

Bureau testified that, if a nurse were to act in the manner described by Delverne, the nurse would

be acting "outside the policy."

4 By Myers's own account, his inmate trust account experienced, at one time, a negative

balance of $120.00. Without data processing records, however, Myers conceded that he had no

way of knowing the actual balance in his account following any given medical service debit that

the county made. He stated in court documents that "an exemption of one-hundred dollars

($100.00) is not out of line in this matter."

The record indicates that Delverne's account experienced a negative balance of

$1.43.

3 were requested, each inmate signed a newly developed form labeled "Charge Document," which listed

the date and type of medical services that the inmate had received. The form also indicated the

amo unt charged for each service rendered, but it did not contain a printed box or blank where

indigent inmates could indicate their status. 2 Both inmates claimed that jail personnel told them to

sign the charge document or they would not receive medical services. Delverne specifically testified

that he signed the charge docume nt under duress after a nurse told him that he must sign the

document before he could receive his prescription. 3 In each case, the jail debited the inmate's trust

account for the medical services that each had received, as indicated on the signed charge documents.

This debit resulted in negative balances to both Myers's and Delverne's trust accounts. 4

Believ ing t hat the Sheriff had made improper debits to their accounts, both Myers and

Delverne allege that they filed internal grievances at the jail. Delverne testified that he believed he5 Other than Myers's own statements, the record contains no evidence of the interview with

Nichols. Myers stated in court documents: "When I discussed a hearing with Mr. Don Nichols

he said he would take care of it.... I have never been given a reason for denial."

4 had filled out one grievance form and placed it in a grievance box on the jail's wing. In Delverne's

words, his grievance remained "unresolved" at the time that he filed his pro se civil rights complaint

against Sheriff Klevenhagen. Myers alleged in his complaint that he had "filed numerous grievances

and none have be e n sustained." Myers later submitted in court documents that he had written

complaints to: "Mr. Don Nichols, Harris County Jail Medical Department ; Sheriff Johnny

Klevenhagen, Harris County Sheriff; Mr. Mike Driscoll, Harris County Attorney; Mr. John Lindsey,

Harris County Judge; Mr. Kelly Nichols, Harris County Risk Management." Myers informed the

district court that all of the foregoing ignored his complaints except Nichols, who held an interview

wit h him. 5

II

A

Although the consolidated cases before us present differing procedural postures that might

otherwise require distinct standards of appellate review and analysis, the same threshold legal issue

is common to both: that is, whether these plaintiffs have alleged the violation of a constitutional right

at all. D oe v. Hillsboro Independent School Dist., 81 F.3d 1395, 1402 (5th Cir.1996), rehearing en

banc granted (June 17, 1996) (to state a claim under section 1983, a plaint iff must allege a violation

of rights secured by the Constitution or laws of the United States); L effall v. Dallas Indep. School

Dist., 28 F.3d 521, 525 (5th Cir.1994). We review d e no vo t he dist rict courts' differing legal

conclusions on this issue. Harris v. Angelina County, Tex., 31 F.3d 331, 333 (5th Cir.1994); s ee

also Siegert v. Gilley, 500 U.S. 226, 231-33, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991)

(threshold determination regarding whether plaint iff has asserted a constitutional violation at all is a

purely legal question).

B

At oral argument, counsel for Myers and Delverne stated that debiting the plaint iffs' inmate5

trust accounts was a constitutional due process violation because of the "lack of notice of [plaintiffs']

right to assert [their] indigent status and the lack of opportunity by which to do so." According to

the plaint iffs, the debits to their accounts amounted to a deprivation of property because the Sheriff,

in debiting an indigent's account, violated the jail's own policy and pr ocedures of not chargi ng

indigents for medical services. The plaintiffs further assert coercion on the part of the Sheriff because

they cla im t o have been told by the jail's medical personnel that, unless they signed a charge

document, they would not receive medical services. We thus understand the plaintiffs' constitutional

claim to be that, by requiring plaint iffs, who were indigent, to pay for me dical services without

not ifying them of their right to assert indigency on the original medical charge document, the Sheriff

deprived the plaint iffs of property (i.e., monies in their inmate trust account) without affording them

constitutional due process. The plaintiffs seek no injunctive or equitable relief. Instead, as counsel

informed us at oral argument, they are merely requesting money damages, or reimbursement, for the

charges to their respective accounts. These charges occurred during the initial months of the medical

charge policy's implementation. The approximate two-month period of time at issue corresponds to

the time during which the Harris County jail used the original form of charge document, which did

not contain a printed box to indicate indigency. See supra note 2 and accompanying text.

C

Our case law is clear, however, tha t a priso n o fficial's failure to follow the prison's own

policies, pr o cedures or regulations does not constitute a violation of due process, if constitutional

m inima are nevertheless met. G iovanni v. Lynn, 48 F.3d 908, 912 (5th Cir.1995) ; Murphy v.

Collins, 26 F.3d 541, 543 (5th Cir.1994); H ernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir.1986).

In determining whether constitutional minima have been satisfied, this circuit has relied upon the

holdings of the United States Supreme Court in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68

L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).

Writing for our court in Murphy v. Collins, Chief Judge Politz construed Hudson to hold that

"deprivations of property caused by the misconduct of state o fficials do not infringe constitutional6

due process provided adequate state post-deprivation remedies exist." M urphy, 26 F.3d at 543. In

Murphy, an inmate sued prison o fficials under 42 U.S.C. § 1983 because the officials had allegedly

confiscated his property in violation of the prison's policy requiring notice and an opportuni ty to be

heard. We held, nonetheless, that the prison's violation of its own notice and hearing policy did not

infringe upon

t he inmate's constitutional due process rights because the state tort remedy of

conversion was available to the inmate. M urphy, 26 F.3d at 544; s ee also Marshall v. Norwood, 741

F.2d 761, 764 (5th Cir.1984) (where state provided adequate postdeprivation tort remedy, inmate

did not suffer an actionable property loss under section 1983).

More recently, our court has explained that the " Parratt/Hudson doctrine dictates that a state

actor's random and unauthorized deprivation of a plaint iff's property does not result in a violation of

procedural due process rights if the state provides an adequate post-deprivation remedy." B rooks v.

George County, Miss., 84 F.3d 157, 165 (5th Cir.1996) (citations omitted). In essence, the doctrine

protects the state from liability for failing to provide a predeprivation process in situations where it

canno t ant icipate the random and unauthorized actions of its officers. I d. The burden is on t

he

complainant to show that the state's postdeprivation remedy is not adequate. Hudson, 468 U.S. at

539, 104 S.Ct. at 3206-07 (O'Conner, J., concurring); Marshall, 741 F.2d at 764.

Applying this precedent to the appeal at hand, we note that the alleged due process violation

is, essentially, a failure to follow the Sheriff's own regulations that results from an unauthorized debit

to the plaint iffs' inmate trust accounts, brought about by the coercion (i.e., "misconduct") of jail

officials. We further note that the state of Texas provided indigent prisoners such as Myers and

Delverne with a statutory postdeprivation remedy of "applying for reimbursement." TEX.CODE

CRIM.PROC.ANN. art. 104.002(d) (Supp.1995) ( see supra note 1 for text of statute). As an added

safeguard, article 104. 002(d) provided that the county "shall assist the prisoner in applying for

reimbursement through [Chapter 61 of the Texas Health and Safety Code] or the hospital district of

which he is a resident." Id.

Our review of the appellate record in its ent iret y reveals no evidence that either Myers or6 Referring to article 104.002(d) in his complaint, Myers states: "If Inmate is Indigent the

Sheriff is directed to the County Medical Authority for repayment. This is not done by Johnny

Klevenhagan." Myers's apparent misconstruction of the controlling statute does not, of course,

excuse his own failure to pursue an available remedy.

7 Delverne applied for reimbursement pursuant to article 104.002(d), sought assistance with applying

for statutory reimbursement, or even requested information about the reimbursement process. This

is so despite the fact that both inmates were aware of the s tatute and expressl y ci ted to arti cl e

104.002(d) in their respective handwritten section 1983 complaints. 6 Mindful that the plaintiffs only

seek monetary reimbursement on appeal, our review of the appellate record further reveals no

evidence that this postdeprivation reimbursement remedy was inadequate.

Moreover, we are convinced on this record that the Sheriff has satisfied, at least minimally,

any constitutional due process standards that might be require d with respect to notifying indigent

inmates of the jail's new medical services policy. The record evidence demonstrates that the Sheriff

made efforts to post notice of the policy in all jail cells and that the notice instructed indigent inmates

on how to complete th e medical forms so as to avoid charges for medical services. The evidence

further demonstrates that the jail's medical personnel were instructed by memoranda and in meetings

on procedures for completing an indigent inmate's medical charge document. The jail also advised

its medical pers o nnel t hat no inmate would be denied medical services if the inmate indicated an

inability to pay.

Plaint iffs allege, however, that notwithstanding the jail's efforts t o disseminate information

about the new policy, medical personnel required them to sign the charge d ocuments in order to

receive medical services. In response to the plaintiffs' allegations, the testimony at Delverne's trial

indicates that any such conduct on the part of the jail's medical personnel would be outside of Harris

County's medical services policy. S ee supra note 3. Such misconduct on the part of Harris County's

medical personnel as alleged by the plaint iffs is precisely the kind of unauthorized conduct addressed

in Parratt/Hudson. Consequently, as discussed above, such conduct can never serve as the basis for

a constitutional due process violation when, as here, the state provides an adequate postdeprivation8

remedy.

In sum, we conclude that the plaintiffs have failed to state a claim for a constitutio nal due

process violation that is actionable under section 1983. First, with respeche Sheriff met the

constitutional minima by posting information regarding t he new medical services policy in the jail

cells, by distributing explanatory memoranda to the jail's personnel and by holding meetings about the

new policy with medical personnel. Second, to t he ext ent that the plaintiffs are claiming that the

Sheriff impaired their constitutional rights by failing to follow state procedural law or the jail's own

policies and procedures, we must reject this claim under the rationale of Murphy v. Collins. Finally,

to the extent that the plaint iffs are relying on t he alleged coercive conduct of the jail's medical

personnel to state their constitutional claim, it is clear to us that under the Parratt/Hudson doctrine

such conduct was unauthorized and therefore fails to support, in the light of an adequate

postdeprivation remedy, the plaint iffs' theory of a constitutional due process violation. Thus, because

a postdeprivation state remedy existed, which the plaintiffs have failed to show was inadequate, all

these alleged violations fail to state an actionable constitutional claim under section 1983. Having

found no constitutional violation on this record, we need not reach the issue of qualified immunit y

or the other remaining issues raised by the parties in their briefs.

We therefore AFFIRM the district court's order granting summary judgment for Jo hnny

Klevenhagen in Civil Action No. H-93-1993, and w e REVERSE the final judgment in favor of

Creighton Delverne in Civil Action No. H-92-3338. The judgments below are

AFFIRMED in No. H-93-1993; and REVERSED in No. H-92-3338.