Opinion
2:01-CV-0427
April 3, 2002
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff DUG CANH PHAN, acting pro se and proceeding in forma pauperis while a prisoner confined 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-named defendants. On March 7, 2002, a Report and Recommendation was issued by the United States Magistrate judge analyzing plaintiff's claims under Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), and recommending dismissal as frivolous and for failure to state a claim on which relief can be granted.
Plaintiff filed his Objections on April 1, 2002.
By his Objections, plaintiff contends the Court has misconstrued his complaint. He states he is not challenging the constitutionality of the prison policies concerning the multiple outlets electrical strips, "[i]nstead, the Plaintiff is complaining about the prison officials acting OUTSIDE the established rules/guidelines; to wit: arbitrarily confiscating authorized personal property without due process or equal protection of the law [emphasis in the original]."
Accepting plaintiffs claim and treating it as being plaintiff's claim from the beginning of this suit, the correction set forth above does not rescue his claim from dismissal. If plaintiffs property was confiscated arbitrarily in violation of the state procedural regulations, Texas provides an adequate post-deprivation remedy by way of a tort claim in Texas courts. See Tex. Gov't Code Ann. § 500.007 (Vernon 1990);Murphy v. Collins, 26 F.3d 541, 543-44 (5th Cir. 1994). 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). A prisoner's due process rights are not violated by the confiscation of property without regard to prison policy requiring notice and the opportunity to be heard, where the tort of conversion provides adequate post-deprivation remedies under Texas law. Murphy v. Collins, 26 F.3d at 543. Consequently, plaintiff's claim 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).
Plaintiff's equal protection claim appears to be unchanged and was addressed in the March 7, 2002, Report and Recommendation.
The Court has made an independent examination of the records in this case and has examined the Magistrate Judge's Report and Recommendation, as well as the objections filed by the plaintiff.
The Court is of the opinion that the objections of the plaintiff should be OVERRULED and that the Report and Recommendation of the United States Magistrate Judge should be ADOPTED by the United States District Court, as supplemented herein.
This Court, therefore, does OVERRULE plaintiffs objections, and does hereby ADOPT the Report and Recommendation of the United States Magistrate Judge, as supplemented herein.
IT IS THEREFORE ORDERED that, pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff DUG CANH PHAN IS DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Any motions still pending are hereby DENIED.
The Clerk will mail a copy of this Order to the plaintiff and to any attorney of record by first class mail. The Clerk will also mail a copy of this Order to TDCJ-Office of the General Counsel, P.O. Box 13084, Capitol Station, Austin, Texas 78711, and to Claire Laric at the United States District Court for the Northern District of Texas, Dallas Division.
IT IS SO ORDERED.