* 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this opinion should not be published and is not precedent except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

October 5, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41268

Summary Calendar

 

MICHAEL FORD,

Plaintiff-Appellant,

versus

PHILLIP JONES; ROBERT FORD; GREGORY WINGATE; WILLIAM DUGGER;

KELVIN SCOTT; JAMES CHAPMAN; THOMAS CARROLL; KELLI WARD;

SUSAN SCHUMACHER; MELVIN TRAHAN; MICHAEL GEERDES,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:02-CV-626

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

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Michael Ford, Texas prisoner # 557415, proceeding pro se and

in forma pauperis (IFP), appeals the district court’s dismissal

of his civil rights complaint filed pursuant to 42 U.S.C. § 1983

as frivolous. Ford alleged in his complaint that his

constitutional rights were violated when, in response to his

threat to file a grievance, various Texas Department of Criminal

Justice (TDCJ) officials retaliated by forcing him to remain in
No. 04-41268

-2-

outdoor recreation for three hours without a jacket on February

1, 2002. He also alleged that his constitutional rights were

violated when TDCJ officials failed to properly investigate the

loss of his radio while it was under TDCJ control. 

Ford first argues that the district court abused its

discretion in determining that he did not state a cognizable

retaliation claim. As Ford correctly contends, his allegation

that officials refused to provide him with a jacket or allow him

to return to his cell as a result of his threat to file a

grievance was sufficient to allege a violation of a

constitutional right. See Woods v. Smith, 60 F.3d 1161, 1166

(5th Cir. 1995); Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir.

1989). In addition, Ford’s contention that he was left outside

in below-45-degree weather without a jacket, whereas other

inmates were left outside for only an hour without jackets, was

sufficient to set forth a retaliatory adverse act. See Hart v.

Hairston, 343 F.3d 762, 764 (5th Cir. 2003). Furthermore, Ford’s

allegation that an official responded to his threat to file a

grievance by telling him that he would be left outside to freeze

until he came back to get him and Ford’s allegation that he then

was left outside for two hours longer than other inmates stated a

“chronology of events” sufficient to viably allege retaliatory

motive and causation. See id.; Woods, 60 F.3d at 1166. Ford has

alleged facts sufficient to support a retaliation claim, and,

thus, the district court abused its discretion in dismissing the
No. 04-41268

-3-

claim. Accordingly, we VACATE the district court’s dismissal of

this claim as frivolous and REMAND this case to the district

court for further proceedings in accordance with this opinion. 

Ford also argues that the district court erred in

determining that prison officials did not violate the Eighth

Amendment’s prohibition against cruel and unusual punishment when

they intentionally left him outside in the cold weather

throughout the winter of 2001 and 2002 without a jacket. 

However, because Ford has not shown that the deprivation resulted

in “the denial of the minimal civilized measures of life’s

necessities,” the district court did not abuse its discretion in

dismissing the claim as frivolous. See Palmer v. Johnson, 193

F.3d 346, 352 (5th Cir. 1999). Accordingly, the district court’s

dismissal of this claim as frivolous is AFFIRMED. 

Ford contends that the district court erred in dismissing

his claim that prison officials lost his radio while it was in

their custody. Because Texas has adequate postdeprivation

remedies for the confiscation of property, such as a tort action

for conversion, Ford may not bring a federal claim for

deprivation of property through the “random and unauthorized”

acts of government officers. Sheppard v. La. Bd. of Parole, 873

F.2d 761, 763 (5th Cir. 1989); Thompson v. Steele, 709 F.2d 381,

383 (5th Cir. 1983). Ford conclusorily asserts that a prisoner

cannot bring a claim in justice court or small claims court

because those courts do not have the authority to issue a bench
No. 04-41268

-4-

warrant that the state prison system is obligated to follow. 

However, he does not indicate that he has attempted to file such

an action, much less that the court’s inability to issue a bench

warrant actually prevented him from pursuing it. Accordingly,

the district court did not abuse its discretion in dismissing

this claim as frivolous, and the district court’s dismissal of

this claim is AFFIRMED. 

Ford’s motion for appointment of counsel on appeal is

DENIED. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.

1982). 

 AFFIRMED IN PART, VACATED AND REMANDED IN PART; MOTION

DENIED.