* 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that this opinion should not be published and is not precedent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 30, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-20236

Summary Calendar

 

LEE DANIELS,

Plaintiff-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, INSTITUTIONAL DIVISION; GARY L. JOHNSON; FRED BECKER,

Head Warden Jester III Unit; COLLINS, Assistant Warden 

Jester III Unit; B. WRIGHT, Craftshop Supervisor Jester III 

Unit; PERRYMAN, Head Warden Powledge Unit; E. A. WESTFALL, 

Assistant Warden Powledge Unit; CHICO, Lieutenant Powledge 

Unit; CRAFTSHOP SUPERVISOR, Powledge Unit; CARMONA, Head 

Warden Wallace Pack Unit; S. POOL, Correctional Officer 4 

Craftshop Supervisor Wallace Pack Unit; D. JOHNSON, Unit 

Property Officer Wallace Pack Unit; M. WARNER, Coach Wallace 

Pack Unit; LARRY LARGENT, Dr.; E. FONTENOTE; V. PORTER; 

MARTINEZ-CARDONA; DAVID TILLERY; Correctional Officer WEBB; 

KELLI WARD; M. HALL, Administrative Warden; LEO QUINN; 

W. SMITH, Investigator, 

Defendants-Appellees.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-03-CV-361

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

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*
No. 03-20236

-2-

Lee Daniels, Texas state prisoner # 00721531, appeals the

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

failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). 

When a plaintiff alleges that he has been deprived of his property

without due process of law by the negligent or intentional actions

of a state officer that are “random and unauthorized,” a

postdeprivation tort cause of action in state law is sufficient to

satisfy the requirements of due process. Parratt v. Taylor, 451

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

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

U.S. 517, 533 (1984); see also Murphy v. Collins, 26 F.3d 541, 543-

44 (5th Cir. 1994). Because Texas has adequate postdeprivation

remedies for the confiscation of prisoner property, Daniels does not

have a cognizable claim under 42 U.S. C. § 1983. See Murphy, 26

F.3d at 543-44; Thompson v. Steele, 709 F.2d 381, 383 (5th Cir.

1983). Because Daniels has not shown that he could have amended his

complaint to allege any facts which would assert a cognizable 42

U.S.C. § 1983 claim concerning the deprivation of his property, he

has not shown that the district court erred in dismissing his 42

U.S.C. § 1983 action without providing notice and an opportunity to

amend his complaint. See Jones v. Greninger, 188 F.3d 322, 326-27

(5th Cir. 1999).

To the extent that Daniels contends on appeal that the property

included “legal materials,” he did not raise this claim in his

original complaint and did not otherwise raise a claim of the denial
No. 03-20236

-3-

of access to the courts in his original complaint. Likewise, to the

extent that Daniels argues that he should have been allowed to

pursue a deliberate-indifference-to-serious-medical-needs claim,

Daniels did not raise this claim in his original complaint, which

was limited to a claim of deprivation of property. Daniels may not

make claims for the first time on appeal. 

Daniels argues that the district court should have ruled on his

various postjudgment motions before accepting his notice of appeal

for filing. Generally, as Daniels acknowledges, the filing of a

timely notice of appeal transfers jurisdiction over matters involved

in the appeal from the district court to the court of appeals and

divests the district court of jurisdiction. See United States v.

Hitchmon, 602 F.2d 689, 692 (5th Cir. 1979)(en banc). Daniels does

not argue that his postjudgment motions were in aid of appeal. His

argument that the district court should have postponed filing his

notice of appeal until ruling on his postjudgment motions, filed

after he submitted to the court his notice of appeal, is without

legal support and is factually untenable.

Accordingly, the district court’s dismissal of Daniels’s

complaint is AFFIRMED. The district court’s dismissal for failure

to state a claim and this court’s affirmance of the district court’s

dismissal count as a single strike for purposes of 28 U.S.C. §

1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.

1996). Daniels is warned that if he accumulates three strikes, he

may not proceed in forma pauperis in any civil action or appeal
No. 03-20236

-4-

while he is incarcerated or detained in any facility unless he is in

imminent danger of serious physical injury. See 28 U.S.C. §

1915(g).

AFFIRMED; SANCTIONS WARNING ISSUED.