IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ROBERT JOHNATHAN WALKER, §

(TDCJ # 1248654) §

 § 

 § CIVIL ACTION NO.4:04-CV-952-Y VS. 

§

 §

HOOD COUNTY, TEXAS, 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 Robert Johnathan Walker, a prisoner presently housed

at the Texas Department of Criminal Justice-Powledge 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 Walker’s form civilrights complaint seeking relief under 42 U.S.C. § 1983, he names as

defendants Hood County, Texas; Allen Hardin, Sheriff, Hood County,

Texas; and Officer Carter, Hood County jail. (Compl. Style; ¶

IV(B).) In the form complaint, Walker alleges that when he was

transferred from the custody of the Tarrant County jail to the Hood

County jail, several items of personal property that were transferred to Hood County in a property bag with him, have now been

either stolen, lost or misplaced. (Compl. § IV(B); § V.) Specifically, Walker alleges that Hood County should have two of his

watches, including an antique “Ebel” brand, a black leather wallet,

a raincoat, and an old coin. (Compl. § V; attachment pages.) Walker

contends that Sheriff Hardin allowed the property room to be

unlocked, and that Officer Carter allowed the property to be

 

 Case 4:04-cv-00952-Y Document 6 Filed 04/29/05 Page 1 of 5 PageID 16
1

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). 

2

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)).

3

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

4

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

2

stolen, lost or misplaced. (Compl. § IV(B).) Walker estimates that

the items were valued at a total of over $1,500, and he seeks to

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

of the property, and he seeks an order to direct Hood County to

adopt new procedures regarding the intake and control of inmate

property items. (Compl. ¶ VI.) 

 A complaint filed in forma pauperis that lacks an arguable

basis in law should be dismissed under 28 U.S.C. § 1915.1 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.2 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

docketing.3 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.4 Rather, § 1915 gives

 

 Case 4:04-cv-00952-Y Document 6 Filed 04/29/05 Page 2 of 5 PageID 17
5

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

6

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).

7

To the extent Walker 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 required. Id. 

8

U.S. CONST. amend. XIV § 1.

3

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

meritless legal theory.”5

 After review and consideration of Walker’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.6

 Plaintiff‘s

allegations as to the deprivation of property fail to satisfy the

first element. Walker 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.7 The Fourteenth Amendment to

the Constitution provides that no State shall “deprive any person

of life, liberty, or property without due process of law.”8

 Under

the Parrat/Hudson doctrine, a random and unauthorized intentional

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

 

 Case 4:04-cv-00952-Y Document 6 Filed 04/29/05 Page 3 of 5 PageID 18
9

See 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.”)

10Hudson, 468 U.S. at 534-35; Myers, 97 F.3d at 94.

11See 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).

12See 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

with an adequate post-deprivation remedy.)

4

Process Clause if the state provides an adequate post-deprivation

remedy.9 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.10 Texas law allows recovery of monetary damages for loss

of use of property during its period of detention.11 Because Texas

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

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

violation of the Due Process Clause.12 Thus, Plaintiff’s allegation

concerning the loss of his watches and other 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 Robert Johnathan Walker’s

 

 Case 4:04-cv-00952-Y Document 6 Filed 04/29/05 Page 4 of 5 PageID 19
5

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.

 

 Case 4:04-cv-00952-Y Document 6 Filed 04/29/05 Page 5 of 5 PageID 20