IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40183

JAMES L. GARDNER

Plaintiff-Appellant

v.

WARDEN DAVID HUDSON, Co5 N. BURGESS, WARDEN STEVEN N.

RICH, and VICKI S. HARTWICK, Stiles Unit Property Officer

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:09-CV-189

Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:

*

James L. Gardner, Texas prisoner #1193858, filed this 42 U.S.C. § 1983

action against David Hudson, Warden of the Telford Unit; N. Burgess, property

officer of the Telford Unit; Steven N. Rich, Warden of the Stiles Unit; and Vicki

S. Hartwick, property officer of the Stiles Unit, for illegally losing or destroying

his property. Gardner appeals the district court’s dismissal of his complaint for

failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.

United States Court of Appeals

Fifth Circuit

F I L E D

February 3, 2011

Lyle W. Cayce

Clerk

 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.

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No. 10-40183

§ 1915A(b)(1) based on the Parratt/Hudson doctrine. The district court

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determined that his property claim was barred because he had alleged a

negligent deprivation of property for which Texas provided an adequate postdeprivation remedy.

Gardner argues that the district court erred in dismissing his property

claim as barred by the Parratt/Hudson doctrine because his property should

have been stored by TDJC officials pursuant to Administrative Directive 03.72

when he was rushed to the hospital. Gardner alleged in the district court that

his property was “lost” because the prison officials failed to follow the prison

policy to store, tag, and safeguard his property as required by administrative

directive when he was taken from the Telford Unit by ambulance. He did not

allege that his property was confiscated pursuant to prison policy. His

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allegations concerning the defendants’ actions were exactly the type of random

and unauthorized conduct to which the Parratt/Hudson doctrine was designed

to apply. See Allen v. Thomas, 388 F.3d 147 (5th Cir. 2004).

Citing TEX. CIV.PRAC. & REM. CODE ANN. § 14.005(b), Gardner argues that

he was deprived of his opportunity to seek adequate post-deprivation remedies

because the prison officials did not return his grievances to him in a timely

manner so that he could meet the 31-day filing deadline. Section 14.005

provides for the exhaustion of prison grievance remedies and requires an inmate

to file his claim “before the 31st day after the date the inmate receives the

written decision from the grievance system.” § 14.005(b). “The time for filing

Parratt v. Taylor, 451 U.S. 527, 541-44 (1981) (overruled in part not relevant here,

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Daniels v. Williams, 474 U.S. 327 (1986)); Hudson v. Palmer, 468 U.S. 517, 533 (1984).

In his Objections to the Magistrate’s Report, Gardner for the first time claimed that 2

his property was confiscated under the authority of A.D. 03.72. However, he did not properly

raise that claim before the district court, and he has failed to show that the district court

abused its discretion by failing to recognize his Objections as a motion to amend his complaint.

See United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992); Harrison v. Smith, 83

F.App’x 630 (5th Cir. 2003) (per curiam).

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suit pursuant to Section 14.005(b) runs from the date the inmate receives the

written decision from the grievance system, not the date the Department issues

its final decision on the matter.” Mason v. Wood, 282 S.W.3d 189, 193 (Tex. App.

2009). The alleged delay in returning the grievances to Gardner did not affect

his ability to file his claim in state court because the 31 days run from the date

the inmate “receives” the decision. See id.

Referring to the magistrate judge’s restatement of his allegations, Gardner

argues that the district court erred in adopting the findings and conclusions of

the magistrate judge because that report contains either perjury or direct

evidence of ex parte communication between the district court and the

defendants. Gardner’s accusations of perjury or improper ex parte contact are

baseless.

The district court did not err in dismissing Gardner’s complaint for failure

to state a claim. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998).

Gardner’s appeal is without arguable merit and is frivolous. See Howard v.

King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it is

dismissed. See 5TH CIR. R. 42.2. Gardner is informed that the dismissal of this

appeal as frivolous and the district court’s dismissal under 1915A(b)(1) count as

two strikes for the purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,

103 F.3d 383, 387-88 (5th Cir. 1996). Gardner is cautioned that if he

accumulates three strikes, he may not proceed in forma pauperis (IFP) 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).

APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED. 

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