IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-11009

Summary Calendar

JAMES A. BROWN,

Plaintiff-Appellant

v.

SERGEANT NFN VASQUEZ; CORRECTIONAL OFFICER III R. HUGHES,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:14-CV-198

Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.

PER CURIAM:*

James A Brown, Texas prisoner # 1893446, filed a 42 U.S.C. § 1983 

complaint alleging violations of his constitutional rights stemming from two 

cell extractions. He named as defendants Sergeant Vasquez and Correctional 

Officer R. Hughes. Pursuant to 28 U.S.C. § 636, Brown consented to proceed 

before the magistrate judge (MJ). Brown now appeals the MJ’s dismissal of 

his complaint as frivolous and for failure to state a claim pursuant to 

 

* 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

October 23, 2017

Lyle W. Cayce

Clerk

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28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). We review the dismissal de novo. 

See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).

A de novo review reveals the MJ did not err in dismissing Brown’s 

excessive force claim for failure to state a claim. See Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009); Geiger, 404 F.3d at 373. Construing the facts from the 

complaint in Brown’s favor, no reasonable jury could find that the defendants’ 

actions were not “a good-faith effort to maintain or restore discipline.” Hudson 

v. McMillian, 503 U.S. 1, 7 (1992) (“[T]he core judicial inquiry [in an excessiveforce claim] is . . . whether force was applied in a good-faith effort to maintain 

or restore discipline, or maliciously and sadistically to cause harm.”). The fact 

that force was required at all was due to Brown’s repeated failure to comply 

with orders and his resistance to the extraction team’s efforts to restrain him 

once they entered his cell. Under the circumstances, the defendants used no 

more force than was reasonably necessary to secure Brown.

Next, Brown challenges the MJ’s conclusion that his prison disciplinary 

proceeding claims were barred by Heck v. Humphrey, 512 U.S. 477, 486-87 

(1994), and Edwards v. Balisok, 520 U.S. 641, 646-48 (1997). If Brown’s claims 

are credited, they necessarily imply that the finding of guilt and punishment 

for his prison violation was invalid. Because Brown has not shown that the 

disciplinary decision has been overturned, he cannot maintain a § 1983 action 

for damages. See Edwards, 520 U.S. at 646-48; Heck, 512 U.S. at 486-87. 

Likewise, Brown cannot recover in a § 1983 action the good-time credits 

forfeited in his disciplinary proceeding. See Clarke v. Stalder, 154 F.3d 186, 

189 (5th Cir. 1998) (en banc).

Brown also asserts that the MJ erred in dismissing his retaliation claim 

for failure to state a claim. According to Brown, the defendants engaged in a 

“campaign of harassment and retaliation” by denying him a meal, spraying 

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him with chemical agents, conducting unnecessary strip searches, committing 

him to crisis management under false pretenses, and taking his property. 

Brown has failed to offer any direct evidence of the defendants’ retaliatory 

motive or a chronology of events from which retaliation could plausibly be 

inferred. See Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997); Woods 

v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).

To the extent Brown argues that the MJ improperly determined that his 

property loss claim was barred by the Parratt/Hudson1 doctrine, his argument 

is without merit. “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.” Allen v. Thomas, 388 F.3d 147, 149 (5th Cir. 2004) (internal 

quotation marks and citation omitted). Texas’s tort of conversion provides 

adequate state post-deprivation remedies to prisoners who claim due-process 

violations based on deprivation of their property. See Murphy v. Collins, 26 

F.3d 541, 543-44 (5th Cir. 1994); see also Peters v. Klevenhagen, 1995 WL 

581581, at 1 (5th Cir. 1995); TEX. GOV’T CODE §§ 501.007, 501.008.

Similarly unavailing is Brown’s contention that the MJ erred by not 

providing him an opportunity to amend before dismissing his § 1983 complaint. 

The record reflects that the MJ ordered Brown to provide a more definite 

statement to better ascertain Brown’s claims. Brown complied. Even with the 

opportunity to provide a more definite statement, Brown’s claims were found 

to be inadequate, demonstrating that Brown had already alleged his best case 

and that any further amendment would not have stated a valid § 1983 claim. 

 

1 Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 541-44 

(1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986).

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See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); Eason v. Thaler, 14 

F.3d 8, 9 (5th Cir. 1994).

Finally, Brown briefs no argument, separate from his assertion of 

retaliation, that the defendants violated his Eighth Amendment rights by 

spraying him with chemical agents on September 2, 2014, and that Officer 

Hughes violated his Fourth Amendment rights by conducting unnecessary 

strip searches on September 2, 2014. When an appellant fails to identify any 

error in the district court’s analysis, it is the same as if the appellant had not 

appealed that issue. Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 

744, 748 (5th Cir. 1987). Thus, these arguments are deemed abandoned. 

See id. For the first time on appeal, Brown raises a failure-to-protect claim. 

Because Brown did not raise this claim in the district court, we need not 

consider it on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 

(5th Cir. 1999).

Brown has not shown that the MJ erred in dismissing his § 1983 

complaint as frivolous and for failure to state a claim. See Geiger, 404 F.3d at 

373. As a result, the judgment of the MJ is affirmed. The MJ’s dismissal of 

Brown’s complaint counts as a strike for purposes of 28 U.S.C. § 1915(g). 

Brown also has two prior strikes from complaints that were dismissed as 

frivolous and for failure to state a claim. See Brown v. Operman, 1:14-cv-00736 

(W.D. Tex. Nov. 12, 2014); Brown v. Joseph, 1:13-cv-00843 (W.D. Tex. Sept. 18, 

2014). Because Brown has accumulated three strikes, he is advised that he is 

now barred from proceeding in forma pauperis 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).

Further, we warn Brown that frivolous, repetitive, or otherwise abusive 

filings will invite the imposition of sanctions, which may include dismissal, 

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monetary sanctions, and restrictions on his ability to file pleadings in this court 

and any court subject to this court’s jurisdiction. See Coghlan v. Starkey, 852 

F.2d 806, 817 n.21 (5th Cir. 1988). Brown should review any pending appeals 

and actions and move to dismiss any that are frivolous.

AFFIRMED; § 1915(g) SANCTION BAR IMPOSED; SANCTION 

WARNING ISSUED.

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