Opinion
2:03-CV-0319
January 6, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff NOEL HOPKINS, while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants. Plaintiff has paid the filing fee and is not proceeding in forma pauperis.
Plaintiff complains that, on or about February 27, 2003, defendants LONG and MERRICK stole much of his property while the JOHN DOE defendants were watching. Plaintiff's grievances have produced the response that none of his property is in the property room at the prison unit.
Plaintiff requests an award of compensatory damages and costs.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, AH v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 42 U.S.C. § 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The District Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff in his complaint to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Plaintiff's claim against the defendants for stealing his property lacks an arguable basis in law and is frivolous. This is not to say that it is all right to steal a prisoner's property; however, a civil allegation of theft of property should be pursued in state court as a violation of tort law. Section 1983 will not support a cause of action if a person's property is taken by random and unauthorized conduct of a state actor and the state provides an adequate post-deprivation remedy. Cathey v. Guenther, 47 F.3d 162 (5th Cir. 1995). Plaintiff's due process rights were not violated by a theft of property without regard to prison policy because the tort of conversion provides adequate post-deprivation remedies under Texas law. Murphy v. Collins, 26 F.3d at 543. Consequently, plaintiff's claim concerning his personal property lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
CONCLUSION
Pursuant to Title 42, United States Code, section 1997e(c)(1),
IT IS HEREBY ORDERED that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff NOEL HOPKINS is DISMISSED WITH PREJUDICE AS FRIVOLOUS.
LET JUDGMENT BE ENTERED ACCORDINGLY.
A copy of this Order shall be mailed to plaintiff and to any attorney of record by first class mail. The Clerk shall also mail copies of this Order of Dismissal to TDCJ-Office of the General Counsel, P.O. Box 13084, Austin, TX 78711; and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.
IT IS SO ORDERED.