January 22, 2002
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff JOHN VASQUEZ, acting pro se and 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 and was granted permission to proceed in forma pauperis.
Plaintiff complains that, on or about December 22, 1999, he was transferred from the Michaels Unit to the Clements Unit, causing his personal property to be packed and transported separately. On December 27, 1999, plaintiff arrived at the Clements Unit and discovered some of his personal property was missing. Plaintiff further complains that, around March 8 and 9, 2000, while in pre-hearing detention at the Clements Unit, various items of personal property were confiscated; however, plaintiff also claims these items were confiscated on the Eastham Unit. Plaintiff states various items were missing from the inventory of his property and that, despite his exhaustion of the grievance system, he has never received the missing property from either or both incidents or any compensation for such property.
Because the exhaustion requirement functions as a legal cause preventing the courts or their officers from taking cognizance of or acting on the suit, the prescriptive period is tolled during exhaustion.Harris v. Hegmann, 198 F.3d 153 (5th Cir. 1999). In light of the forty (40) day from submission deadline for a response by prison officials to any step 1 grievance, (AD.-03.82 (rev.2) VII.B.5.), and the thirty-five (35) day from submission deadline for a response to an inmate's step 2 grievance (AD.-03.82 (rev.2) VII.C.4.), it appears no resolution of plaintiff's step 2 grievance could have occurred before January 4, 2000, the period beyond which limitations would bar assertion of any civil rights claim. Thus, no consideration of the statute of limitations is triggered by the dates in this complaint.
See plaintiff's January 9, 2002, "Complaint for Damages for Loss, Theft or Destruction of Property" at page 10.
Defendant LYODE was the property officer at the Clements Unit, and defendant JEFFERIES was the property officer at the Eastham Unit. Plaintiff argues LOYDE and JEFFERIES "were deficient in their shipping as well as reception of the Plaintiff's personal property items" and claims they lost, destroyed, or stole his missing property. Plaintiff further contends Defendant SWEETIN, an Assistant Warden at the Eastham Unit, conspired with the other defendants to deprive plaintiff of his personal property and did not adequately investigate plaintiffs complaints in this matter. Plaintiff alleges SWEETIN failed to effectively obtain substantive information to locate plaintiffs personal property because of plaintiffs Hispanic heritage.
Plaintiff requests the return or replacement of his missing property or reimbursement for such property, along with compensation for his "mental suffering, psychological duress, and loss of these items."
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, Ali 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. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 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 plaintiffs pleadings and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Any claim that plaintiffs personal property was stolen or destroyed lacks an arguable basis in law and is frivolous. A state actor's failure to follow state procedural regulations does not constitute a violation of due process if "constitutional minima" are met. Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). 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 the confiscation or 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, plaintiffs 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).
As to plaintiffs alternate claim that the property was lost, this amounts to a tort claim for negligence; however, section 1983 imposes liability for deprivation of constitutionally protected rights, not for violations of tort duties of care. Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990); see, also, Daniels v. Williams, 474 U.S. 327, 331-34, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986); Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
Moreover, plaintiff alleges no material facts to support his allegation of conspiracy or his claim that defendant SWEETIN acted or failed to act out of racial animus. Conclusory allegations lacking reference to material facts are not sufficient to state a claim of conspiracy under section 1983, McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th Cir. 1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1141, 107 L.Ed.2d 1046 (1990); or to support claims of malice Al-Ra'id v. Ingle, 69 F.3d 28 (5th Cir. 1995). Thus, on these issues, plaintiff has failed to state a claim on which relief can be granted.
Finally, with respect to plaintiffs claim against defendant SWEETIN for failing to properly investigate or resolve plaintiffs complaint to his satisfaction, the narrowing of prisoner due process protection announced in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), leaves plaintiff without a federally-protected right to have his complaints or grievances investigated and resolved. Any right of that nature is grounded in state law or regulation and the mere failure of an official to follow state law or regulation, without more, does not violate constitutional minima. See, e.g., Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085, 109 S.Ct. 1545, 103 L.Ed.2d 849 (1989); Baker v. McCollan, 433 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979). Plaintiff's claim against defendant SWEETIN 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).
For the reasons set forth above, plaintiffs claims are frivolous and plaintiff has failed to state a claim on which relief can be granted.
Pursuant to Title 28, United States Code, section 1915((e)(2) and 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 JOHN VASQUEZ is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
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 Claire Laric, at the U.S. District Court for the Northern District of Texas, Dallas Division.
IT IS SO ORDERED.
ENTERED this 22nd day of January, 2002.