1

Although Plaintiff has signed his name to pleadings in this case as

“Clerkley,” he has also listed the spelling of his name in a prior lawsuit as

“Clerkly” and records of the Texas Department of Criminal Justice show the

spelling of inmate number 595191 name as “Clerkly.” 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

LEONARD CLERKLEY, §

aka Leonard Clerkly,1 §

(TDCJ # 595191) §

 § 

 § CIVIL ACTION NO.4:05-CV-199-Y VS. 

§

 §

CORRECTIONAL SERVICES § 

CORPORATION, et al. §

 OPINION and ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915A(b)(1),

 and UNDER 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) 

Plaintiff Leonard Clerkley, a prisoner presently housed at the

Texas Department of Criminal Justice-Tulia Transfer Unit, was

permitted by the magistrate judge to proceed herein pursuant to 28

U.S.C. § 1915, with the filing fee to be collected as required by

the Prison Litigation Reform Act (PLRA). In Clerkley’s form civilrights complaint seeking relief under 42 U.S.C. § 1983, he names as

defendants the Correctional Service Corporation (CSC); Mr. McGuire,

Director of Operations, CSC-Halfway House, Fort Worth, Texas; and

Lieutenant Davis, CSC- Halfway House, Fort Worth, Texas. (Compl.

Style; ¶ IV(B).) Clerkley alleges that while he was assigned to

the CSC facility in Fort Worth, Texas, in July 2003, he violated

the conditions of his parole, resulting in his arrest and placement

in the Tarrant County jail. Clerkley alleges that he took all steps

necessary to retrieve from the CSC facility items of personal

 

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2

Neitzke v. Williams, 490 U.S. 319,328 (1989). Section 28 U.S.C. §

1915(e) requires dismissal not only when an allegation of poverty is untrue or

the action is frivolous or malicious, but also when “the action . . . fails

to state a claim on which relief may be granted; or seeks monetary relief

against a defendant who is immune from such relief.” 28 U.S.C.A. §

1915(e)(2)(A) and (B)(West Supp. 2004). 

3

See 28 U.S.C.A. § 1915(e)(2)(West Supp. 2004); Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281

(5th Cir. 1990)(discussing authority to dismiss at any time under prior §

1915(d)).

2

property, but that when his sister physically took the proper

release forms to the facility, Lieutenant Davis told her that CSC

no longer had his property. (Compl. § V, attachment pages.)

Clerkley also alleges that Davis “disposed of the property.”

(Compl. § IV(B).) Clerkley claims that CSC had a responsibility to

hold his property for 30 days past his departure from the facility,

and they failed to do so. (Compl.; attachment.) Clerkley estimates

that the items were valued at a total of $3,050, and he seeks to

have the property returned to him or to be compensated for the loss

of the property. (Compl. ¶ VI; attachment.) 

 A complaint filed in forma pauperis that lacks an arguable

basis in law should be dismissed under 28 U.S.C. § 1915.2 Under 28

U.S.C. § 1915(e)(2)(B), a district court retains broad discretion

in determining at any time whether an in-forma-pauperis claim

should be dismissed.3 Furthermore, as a part of the PLRA, Congress

enacted 28 U.S.C. § 1915A, which requires the Court to review a

complaint from a prisoner seeking relief from a governmental entity

or governmental officer or employee as soon as possible after

 

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4

See 28 U.S.C.A. § 1915A(a)(West Supp. 2004).

5

See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).

6

Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).

7

See West v. Atkins, 487 U.S. 42, 48 (1988)(citing cases); Resident

Council of Allen Parkway Village v. U.S. Department of Housing and Urban

Development, 980 F.2d 1043, 1050 (5th Cir. 1993).

8

To the extent Clerkley claims that the loss of his property was only

the result of negligence, such allegation does not state a cause of action

under § 1983. Daniels v. Williams, 474 U.S. 327, 328 (1986); Davidson v.

Cannon, 474 U.S. 344, 347 (1986). Where negligence is involved in causing a

deprivation of property, no procedure for compensation is constitutionally

3

docketing.4 Consistent with § 1915A is prior case law recognizing

that a district court is not required to await a responsive

pleading to conduct its § 1915 inquiry.5 Rather, § 1915 gives

judges the power to “dismiss a claim based on an indisputably

meritless legal theory.”6

 After review and consideration of

Clerkley’s claims in this suit, the Court concludes that they must

be dismissed under the authority of these provisions.

In order to assert a claim for violation of his federal

constitutional rights under 42 U.S.C. § 1983, a plaintiff must set

forth facts in support of the required elements of a § 1983 action:

(1) that he has been deprived of a right secured by the Constitution

or laws of the United States; and (2) that the defendant deprived

him of such right while acting under color of law.7

 Plaintiff‘s

allegations as to the deprivation of property fail to satisfy the

first element. Clerkley has not recited the constitutional basis

for his claim, but it appears that he is complaining of a loss of

property without due process of law.8 The Fourteenth Amendment to

 

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required. Id. 

9

U.S. CONST. amend. XIV § 1.

10See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996)(discussing the

Supreme Court’s decisions in Parratt v. Taylor, 451 U.S. 527 (1981) and Hudson

v. Palmer, 468 U.S. 517 (1983), as dictating that a state actor’s random and

unauthorized deprivation of property does not result in a violation of

procedural due process if the state provides an adequate post-deprivation

remedy, and explaining “the doctrine protects the state from liability for

failing to provide a predeprivation process in situations where it cannot

anticipate the random and unauthorized actions of its officers.”)

11Hudson, 468 U.S. at 534-35; Myers, 97 F.3d at 94.

12See Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994)(In Texas, the

tort of conversion fulfills this requirement); see also Beam v. Voss, 568

S.W.2d 413, 420-21 (Tex.Civ.App.–San Antonio 1978, no writ)(conversion is the

unauthorized and unlawful assumption and exercise of dominion and control over

the personal property of another, to the exclusion of, or inconsistent with

the owner’s rights).

13See Hudson, 468 U.S. at 536 (Noting that even where a prisoner's

property was intentionally destroyed, such destruction did not violate the

Fourteenth Amendment since the Commonwealth of Virginia provided the prisoner

4

the Constitution provides that no State shall “deprive any person

of life, liberty, or property without due process of law.”9

 Under

the Parrat/Hudson doctrine, a random and unauthorized intentional

deprivation of property does not give rise to a violation of the Due

Process Clause if the state provides an adequate post-deprivation

remedy.10 Thus, in challenging a random intentional property

deprivation, the claimant must either take advantage of the

available remedies or prove that the available remedies are

inadequate.11 Texas law allows recovery of monetary damages for loss

of use of property during its period of detention.12 Because Texas

provides an adequate post-deprivation remedy, Clerkley’s claim

concerning the taking of his personal property does not rise to a

violation of the Due Process Clause.13 Thus, Clerkley’s allegation

 

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with an adequate post-deprivation remedy.)

5

concerning the loss of his personal property does not amount to a

violation of a constitutional right, and such claim should be

dismissed under 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. §§ 1915(e)(2)

(B)(i) and(ii).

It is therefore ORDERED that plaintiff Leonard Clerkley’s claims

be, and they are hereby, DISMISSED WITH PREJUDICE pursuant to 28

U.S.C. § 1915A(b)(1) and, alternatively, pursuant to 28 U.S.C. §§

1915(e)(2)(B)(i) and (ii).

 SIGNED April 29, 2005.

 

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