IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

ANDERSON LEE, JR. §

VS. § CIVIL ACTION NO. 1:23-CV-150

ROCKELLA L. NEAL, et al., §

REPORT AND RECOMMENDATION 

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Anderson Lee, Jr., an inmate currently confined at the Leblanc Unit with the Texas

Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma

pauperis, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983 against Defendants Rockella

L. Neal, Sergeant, Jasmine L. Graham, Corrections Officer, and Deanda Y. Turk, Corrections

Officer.

The above-styled action was referred to the undersigned magistrate judge pursuant to 28

U.S.C. § 636 and the Local Rules for the Assignment of Duties to the United States Magistrate Judge

for findings of fact, conclusions of law, and recommendations for the disposition of the case.

Procedural & Factual Background

Plaintiff filed this complaint on April 17, 2023 (doc. # 1). Plaintiff alleges the following:

An inmate stole my watch. Sgt. Neal got the watch from him and took it to inmate

property for verification. Ms. Graham and Ms. Turk, both inmate property stated

there was an investigation concerning said watch. My personal property papers

identify this watch. I was not spoken to about the investigation. My watch came up

“missing” from property and it was reported as being ‘altered.’ I never received any

paper work for confiscation nor the opportunity to mail it home. This incident

happen [sic] in June 2022. This was a Sports Watch, not sold in commissary. 

Id., pg. 4. Plaintiff states further that Defendant Neal “stole my watch through deception,” and that

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Defendants Graham and Turk “assisted in stealing my watch through deception.” Id., pg. 3. For

relief, Plaintiff asks that his watch be replaced or that he be compensated for what it cost. 

Standard of Review

An in forma pauperis proceeding shall be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)

if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief may be granted or (3)

seeks monetary relief from a defendant who is immune from such relief.

A complaint, containing asit does both factual allegations and legal conclusions, is frivolous

where it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989);

Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005); McCormick v. Stalder, 105 F.3d 1059, 1061

(5th Cir. 1997). A complaint lacks an arguable basis in law if it is based on an indisputablymeritless

legal theory. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A complaint lacks an

arguable basis in fact if, after providing the plaintiff the opportunity to present additional facts when

necessary, the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32 (1992).

A complaint fails to state a claim upon which relief may be granted if the factual allegations

are not sufficient to raise a right to relief above the speculative level. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007). Dismissal for failure to state a claim is appropriate when the

plaintiff has failed to plead “enough facts to state a claim to relief that is plausible on its face.” Id.

at 570. Plaintiffs must state enough facts to “nudge[ ] their claims across the line from conceivable

to plausible.” Id. 

In considering whether to dismiss a complaint for failing to state a claim upon which relief

may be granted, all factual allegations in the complaint must be taken as true and construed favorably

to the plaintiff. Fernandez-Montez v. Allied Pilots Association, 987 F.2d 278, 284 (5th Cir. 1993). 

2

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However, conclusory allegations will not suffice to prevent dismissal for failure to state a claim. Id. 

Analysis

Official Capacity Claims

To the extent plaintiff asserts an official capacity claim against the defendants, these claims

should be dismissed. The defendants are employed by the Texas Department of Criminal Justice,

Correctional Institutions Division (TDCJ-CID), which is an agency of the State of Texas. Under the

Eleventh Amendment, states or their agencies may not be sued unless they have consented to the

particular type of suit. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Papasan v. Allain,

478 U.S. 265, 276 (1986). TDCJ is an agency of the State of Texas and would thus be immune from

suit under the Eleventh Amendment. Harris v. Angelina County, 31 F.3d 331, 338 (5th Cir. 1994)

(citing Ruiz v. Estelle, 679 F.2d 1115, 1136-1137 & n. 75) (5th Cir. 1982) (dismissing claims against

the Board of the predecessor of the TDCJ, because the Board of was “merely an agency of the

state”), cert. denied, 460 U.S. 1042 (1983); Loya v. Texas Dep’t of Corrections, 878 F.2d 860, 861

(5th Cir. 1989) (holding the predecessor to the TDCJ immune from suit under Eleventh Amendment). Plaintiff’s claims against all the defendants in their official capacity, therefore, are barred as

Eleventh Amendment immunity extends to suits for monetary damages against state officials in their

official capacities as well. See Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and

Human Res., 532 U.S. 598, 609 n. 10 (2001) (recognizing that “[o]nly States and state officers acting

in their official capacity are immune from suits for damages. . .”). As a result, Plaintiff’s claims

against Defendants Neal, Graham, and Turk in their official capacity should be dismissed as

frivolous and for failure to state a claim upon which relief may be granted. 

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Property Loss

Plaintiff appears to raise a constitutional claim for loss of property without due process of

law against the defendants. However, deprivations of property by prison officials, even when

intentional, do not violate the due process clause so long as an adequate post-deprivation remedy

exists. Hudson v. Palmer, 468 U.S. 517 (1984); Simmons v. Poppell, 837 F.2d 1243 (5th Cir. 1988);

Marshall v. Norwood, 741 F.2d 761 (5th Cir. 1984).1 A claimant must either take advantage of the

available post-deprivation remedies or show that the available remedies are inadequate. Hudson, 468

U.S. at 534-35.

Texas law allows recovery of monetary damages for loss of property that has been taken

without authorization. See, e.g., Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994) (in Texas, the

tort of conversion fulfills this requirement); Cathey v. Guenther, 47 F.3d 162, 164 (5th Cir. 1995);

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

propertyof another to the exclusion of, or inconsistent with the owner’s rights); Myers v. Adams, 728

S.W.2d 771, 772 (Tex. 1987). Because Texas law provides an adequate post-deprivation remedy,

such as the tort action for conversion against individual defendants, plaintiff’s loss of property claim

does not state a violation of the Due Process Clause. See Hudson, 468 U.S. at 536; see also

Washington v. Collier, 747 F.App’x 221, *222-23 (5th Cir. Aug. 24, 2018) (the state of Texas

afforded prisoner adequate post-deprivation remedy for confiscation of funds from his inmate trust

1

The adequate post-deprivation remedy analysis is not applicable, however, if the deprivation of property

results from “established state procedure, rather than random and unauthorized action.” See Logan v. Zimmerman

Brush Co., 455 U.S. 422, 435-36 (1982). Here, Plaintiff alleges the Defendants either directly stole his watch

through deception or assisted in stealing his watch through deception. These allegations appear to allege a random

and unauthorized action.

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fund account and District Court’s dismissal as frivolous was proper). This claim should be

dismissed for failure to state a claim and as frivolous.

Recommendation

Plaintiff’s official capacity claim and claim for loss of property without due process of law

against Defendants Neal, Graham, and Turk should be dismissed for failure to state a claim and as

frivolous. 

Objections

Within fourteen (14) days after receipt of the magistrate judge’s report, any party may serve

and file written objections to the findings of facts, conclusions of law and recommendations of the

magistrate judge. 28 U.S.C. § 636(b)(1)(c). 

Failure to file written objections to the proposed findings of facts, conclusions of law and

recommendations contained within this report within fourteen (14) days after service shall bar an

aggrieved party from the entitlement of de novo review by the district court of the proposed findings,

conclusions and recommendations and from appellate review of factual findings and legal

conclusions accepted by the district court except on grounds of plain error. Douglass v. United Serv.

Auto. Assoc’n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72.

5

_________________________

Zack Hawthorn

United States Magistrate Judge SIGNED this 4th day of May, 2023.

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