Opinion
No. 3:17-CV-796-G
05-10-2017
ARZIE WAYNE DUNCAN, Plaintiff, v. OFFICER LORENA GONZALES, Defendant.
FINDINGS CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
I.
Plaintiff is a state prisoner and has filed this complaint pursuant to 42 U.S.C. § 1983. He is proceeding pro se and the Court has granted him leave to proceed in forma pauperis. Defendant is Officer Lorena Gonzales. The Court has not issued process pending preliminary screening.
Plaintiff claims that he accidentally left some commissary bags on a bench and that Officer Gonzales confiscated the bags as abandoned property. He also claims Officer Gonzales called him names. He seeks an apology from Officer Gonzales, the return of his commissary bags, and the costs of this suit.
II.
Plaintiff's complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That section provides in pertinent part:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from suit.28 U.S.C. § 1915A(a) and (b).
Under 28 U.S.C. § 1915(e), a district court may also summarily dismiss a complaint filed in forma pauperis if it concludes the action is : (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). To state a claim upon which relief may be granted, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face[,]" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must plead those facts with enough specificity "to raise a right to relief above the speculative level . . . ." Id. at 555. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009).
III.
Plaintiff claims Officer Gonzales unlawfully confiscated his commissary property. Plaintiff's claim is barred by the Parratt/Hudson doctrine. See Hudson v. Palmer, 468 U.S. 517, 534-35, 104 S.Ct. 3194, 3204 (1984); Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 1917 (1981) (overruled in part not relevant here, Daniels v. Williams, 474 U.S. 327 (1986)). According to this doctrine, a deprivation of property by state officials that is unauthorized does not rise to the level of a constitutional violation or a cognizable claim under 42 U.S.C. § 1983 if state law provides an adequate post-deprivation remedy. See Hudson, 468 U.S. at 533-34; see also Stotter v. University of Texas at San Antonio, 508 F.3d 812, 821 (5th Cir. 2007) (explaining the Parratt/Hudson doctrine). It is well established that Texas state law provides an adequate post-deprivation remedy. see Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994) ("the tort of conversion fulfills this requirement [of an adequate post-deprivation remedy]"). Thus, Plaintiff's claim should be dismissed.
Plaintiff also claims that Officer Gonzales called him names. Verbal abuse, however, does not give rise to a cause of action under § 1983. Siglar v. Hightower, 112 F.3d 191, 193 (5 Cir. 1997); White v. Gutierez, 274 Fed. Appx. 349, 349 (5 Cir. 2008). This claim should be dismissed.
IV.
The Court recommends that the complaint be dismissed pursuant to 28 U.S.C. §§ 1915A and 1915(e).
Signed this 10 day of May, 2017.
/s/_________
PAUL D. STICKNEY
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).