IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40019

Summary Calendar

MARK CLIFF SCHWARZER,

Plaintiff-Appellant

v.

DALE WAINWRIGHT; LORIE DAVIS; KELVIN SCOTT; PATRICIA CHAPA; 

ROBERT G. BEARD, JR.; PAMELA C. BAROS; TRAVIS L. WHITE,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 6:18-CV-29

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Mark Cliff Schwarzer, Texas prisoner # 1433741, filed a civil rights 

complaint pursuant to 42 U.S.C. § 1983 against several prison officials related 

to the confiscation of property by a correctional officer. He filed the suit as a 

purported class action on behalf of Texas Department of Criminal Justice 

* 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

June 25, 2020

Lyle W. Cayce

Clerk

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inmates. The district court dismissed the complaint as frivolous pursuant to 

28 U.S.C. § 1915A, and it denied the request for class certification. 

Schwarzer has moved to supplement the record with exhibits attached 

to his appellate brief. “An appellate court may not consider new evidence 

furnished for the first time on appeal and may not consider facts which were 

not before the district court at the time of the challenged ruling.” Theriot 

v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). Accordingly, the 

motion is denied. 

We review the dismissal as frivolous pursuant to § 1915A for abuse of 

discretion. See Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). A complaint 

is frivolous and lacks an arguable basis in law if it is based upon an 

indisputably meritless legal theory. See Neitzke v. Williams, 490 U.S. 319, 327 

(1989).

Schwarzer first challenges the dismissal of his claim based on 

deprivation of property. He contends that prison policies allow correctional 

officers to take the property of inmates without cause. Relatedly, renewing a 

claim raised in his complaint, but not expressly addressed by the district court, 

Schwarzer asserts that the primary issue in his case is a violation of 

substantive due process.

Under the Parratt/Hudson doctrine, the deprivation of a 

constitutionally protected property interest caused by a state actor’s random, 

unauthorized conduct does not give rise to a § 1983 procedural due process 

claim unless the state fails to provide an adequate post-deprivation remedy. 

Zinermon v. Burch, 494 U.S. 113, 115 (1990); see Hudson v. Palmer, 468 U.S. 

517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled in part 

by Daniels v. Williams, 474 U.S. 327 (1986). However, “postdeprivation 

remedies,” such as state tort suits, “do not satisfy due process where a 

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deprivation of property is caused by conduct pursuant to established state 

procedure, rather than random and unauthorized action.” Hudson, 468 U.S. 

at 532. In such a case, a § 1983 claim is appropriate. See Augustine v. Doe, 

740 F.2d 322, 329 (5th Cir. 1984). Conduct is not “random and unauthorized” 

for purposes of the Parratt/Hudson doctrine if the state “delegated to [the 

defendants] the power and authority to effect the very deprivation complained 

of.” Zinermon, 494 U.S. at 138. 

Schwarzer alleged in his complaint that his Step 1 and Step 2 grievances 

were denied based on a determination that the seizure of his property was 

pursuant to policy. He attached the relevant grievance forms to his complaint, 

and the responses to these grievances by prison officials support Schwarzer’s 

factual allegations about the stated justification for denying his grievances. 

Because the factual allegations of the complaint and the grievance forms 

indicate that the confiscation of Schwarzer’s property was not a random, 

unauthorized act by a state employee, we conclude that the district court’s 

dismissal as frivolous, pursuant to the Parratt/Hudson doctrine, of 

Schwarzer’s claim based on the alleged confiscation of his property was an 

abuse of discretion. See Allen v. Thomas, 388 F.3d 147, 148-49 (5th Cir. 2004); 

Al-Ra’id v. Ingle, 69 F.3d 28, 32 n.2 (5th Cir. 1995). Therefore, we vacate that 

portion of the district court’s order dismissing Schwarzer’s claim based on the 

deprivation of property and remand for further proceedings. See Allen, 388 

F.3d at 149. We express no opinion as to the merits of any such claim.

Otherwise, we affirm the district court’s judgment. Schwarzer’s claim 

based on the denial of a meaningful prison grievance system was properly 

dismissed, as a prisoner “does not have a federally protected liberty interest in 

having . . . grievances resolved to his satisfaction.” Geiger v. Jowers, 404 F.3d 

371, 374 (5th Cir. 2005). Further, Schwarzer cannot demonstrate that 

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prisoners have a constitutional right to a grievance system. See Sandin v. 

Conner, 515 U.S. 472, 484 (1995); Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 

1995). To the extent that Schwarzer raised a claim based on the failure to 

follow prison regulations, the claim was properly dismissed, as mere violations 

of prison rules or regulations do not alone rise to the level of constitutional 

violations and, therefore, such claims are not actionable under § 1983. See 

Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). 

Finally, Schwarzer has not challenged the denial of his request for class 

certification. The issue is therefore deemed abandoned. See Yohey v. Collins, 

985 F.2d 222, 224-25 (5th Cir. 1993).

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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