Opinion
No. 7:02-CV-073-R
May 31, 2002
ORDER OF DISMISSAL
This is an action brought pursuant to 42 U.S.C. § 1983 by an inmate confined in the James V. Allred Unit of the Texas Department of Criminal Justice ("TDCJ") in Iowa Park, Texas. Defendants are employees of the TDCJ. On April 23, 2002, questions were issued to Plaintiff; his answers to which were filed on May 6, 2002.
Plaintiff claims that Defendants have threatened him and conspired to humiliate him and retaliate against him by unlawfully depriving him off personal property. Complaint ¶ V. He seeks injunctive relief and monetary damages. Id. at ¶ VI.
Prison officials may not retaliate against an inmate for the exercise of a constitutionally protected right. Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995), cert. denied, 516 U.S. 1084, 116 S.Ct. 800 (1996); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir.), cert. denied, 476 U.S. 1117, 106 S.Ct. 1975 (1986). In order to show retaliation an inmate "must establish (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation." McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). Causation requires a showing that "but for the retaliatory motive the complained of incident . . . would not have occurred." Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir.) (quoting Woods, 60 F.3d at 1166), cert. denied, 522 U.S. 995, 118 S.Ct. 559 (1997). This places a significant burden on the inmate. Mere conclusory allegations are insufficient to state a claim. Woods, 60 F.3d at 1166; Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988). The inmate must produce direct evidence of motivation or "allege a chronology of events from which retaliation may plausibly be inferred." Woods, 60 F.3d at 1166 (quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988)).
Plaintiff claims that Defendants used, sold, gave away or destroyed his personal property m retaliation against him for exposing himself to Officer L.R. Gamblin. Complaint ¶ V; Plaintiff's Answers to the Court's Questions No. 1 3. An exhaustive search of federal case law reflects no decision which has extended the constitutional right of free expression to an individual bent on exposing himself to an unwilling viewer. The Court takes judicial notice that such activity is actionable as criminal conduct in the State of Texas. See Texas Penal Code § 21.08 (Indecent Expoure). Simply put, Plaintiff was not engaged in the exercise of a constitutionally protected right when he exposed himself to Defendant Gamblin. Moreover, Plaintiff has failed to articulate any facts which could demonstrate that but for a retaliatory motive, his personal property would not have been taken.
To the extent that Plaintiff seeks redress for the taking of his property, he has failed to state a claim. The United States Supreme Court has held that the "unauthorized, intentional deprivation of property" does not constitute a civil rights violation if there exists a meaningful post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204 (1984); accord Nickens v. Melton, 38 F.3d 183, 184-85 (5th Cir. 1994), cert. denied, 514 U.S. 1025, 115 S.Ct. 1376 (1995); Holloway v. Walker, 790 F.2d 1170, 1174 (5th Cir.) (finding no breach of federally guaranteed constitutional rights, even where a high level state employee intentionally engages in tortious conduct, as long as the state system as a whole provides due process of law), cert denied, 479 U.S. 984, 107 S.Ct. 571 (1986).
Calloway has the state common-law action of conversion available to remedy his alleged loss of property. Myers v. Adams, 728 S.W.2d 771 (Tex. 1987). Conversion occurs when there is an unauthorized and unlawful exercise of dominion and control over the personal property of another which is inconsistent with the rights of the owner. Beam v. Voss, 568 S.W.2d 413, 420-21 (Tex.Civ.App.-San Antonio 1978, no writ). If Defendants exercised unauthorized control over Calloway's personal property, he has a factual basis to allege a cause of action in conversion. Such a common-law action in state court would be sufficient to meet constitutional due process requirements. Groves v. Cox, 559 F. Supp. 772, 773 (E.D. Va. 1983).
To the extent that Plaintiff seeks redress against any Defendant for the loss of property on a theory of negligence, he has failed to state a colorable claim under § 1983. Where mere negligence is involved in causing a deprivation of property, no procedure for compensation is constitutionally required. The unintentional loss of property does not state a cause of action under § 1983. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663 (1986); Davidson v. Cannon, 474 U.S. 344, 347 106 S.CT. 668, 670 (1986). Similarly, Plaintiff's allegation of verbal threats by Defendants does not state a civil rights claim. Technical batteries and angry words do not rise to the level constitutional abuses. United States v. Bigham, 812 F.2d 943, 949 (5th Cir. 1987).
A district court may dismiss a complaint filed in forma pauperis if it determines that the action is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 501 U.S. 1235, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327, 109 S.Ct at 1833. The claims set forth in the case at bar have no arguable basis under federal law.
IT IS THEREFORE ORDERED that Plaintiff's complaint is hereby dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
A copy of this order shall be mailed to Plaintiff.