Hernandez v. Cooper ( 2021 )


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  • Case: 20-40607       Document: 00516100698            Page: 1      Date Filed: 11/19/2021
    United States Court of Appeals
    for the Fifth Circuit                                 United States Court of Appeals
    Fifth Circuit
    FILED
    No. 20-40607                       November 19, 2021
    Summary Calendar                        Lyle W. Cayce
    Clerk
    Abelino Hernandez,
    Plaintiff—Appellant,
    versus
    Karry Cooper,
    Defendant—Appellee.
    Appeal from the United States District Court
    for the Eastern District of Texas
    No. 9:19-CV-167
    Before Smith, Stewart, and Graves, Circuit Judges.
    Per Curiam:*
    Proceeding pro se and in forma pauperis, Abelino Hernandez, Texas
    prisoner #1954219, challenges the dismissal, for failure to state a claim and as
    frivolous under 
    28 U.S.C. § 1915
    (e)(2)(B)(i) and (ii), of his 
    42 U.S.C. § 1983
    complaint. Hernandez maintains that he suffered an unconstitutional depri-
    *
    Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
    ion should not be published and is not precedent except under the limited circumstances
    set forth in 5th Circuit Rule 47.5.4.
    Case: 20-40607        Document: 00516100698        Page: 2     Date Filed: 11/19/2021
    No. 20-40607
    vation of property when Officer Karry Cooper violated prison procedure for
    packing inmate property, resulting in the theft of several of Hernandez’s
    recently purchased stamps. Our review is de novo. See Samford v. Dretke, 
    562 F.3d 674
    , 678 (5th Cir. 2009).
    Hernandez is prevented by the Parratt-Hudson doctrine from pursu-
    ing a confiscation-of-property claim using § 1983. See Parratt v. Taylor,
    
    451 U.S. 527
    , 541−44 (1981), overruled in part on other grounds by Daniels v.
    Williams, 
    474 U.S. 327
    , 328 (1986); Hudson v. Palmer, 
    468 U.S. 517
    , 533
    (1984). Parratt and Hudson, considered together, hold that when a plaintiff
    alleges a deprivation of property without due process of law “by the negligent
    or intentional actions of a state officer that are random and unauthorized,” a
    post-deprivation tort cause of action in state law is sufficient to satisfy due
    process. Sheppard v. La. Bd. of Parole, 
    873 F.2d 761
    , 763 (5th Cir. 1989)
    (internal quotation marks and citation omitted).
    Hernandez’s complaint alleged that the deprivation of his property
    was random and unauthorized by applicable prison procedure. Texas has
    adequate post-deprivation remedies—such as the tort of conversion—for the
    confiscation of a prisoner’s property. Murphy v. Collins, 
    26 F.3d 541
    , 543−44
    (5th Cir. 1994). Therefore, the district court did not err in its determination
    that the complaint was frivolous and failed to state a claim. See Samford,
    
    562 F.3d at 678
    .
    For the first time on appeal, Hernandez contends that his grievances
    were not properly investigated because the video footage was not examined.
    We do not consider issues raised for the first time on appeal. See Leverette v.
    Louisville Ladder Co., 
    183 F.3d 339
    , 342 (5th Cir. 1999).
    Because Hernandez has not shown that the district court erred in dis-
    missing his claims, he has not established that he will present a non-frivolous
    issue on appeal, so the appeal is DISMISSED as frivolous. See 5th Cir.
    2
    Case: 20-40607      Document: 00516100698           Page: 3    Date Filed: 11/19/2021
    No. 20-
    40607 R. 42
    .2; Howard v. King, 
    707 F.2d 215
    , 219−20 (5th Cir. 1983).
    The dismissal of the appeal and the district court’s dismissal of the
    complaint count as two strikes under 
    28 U.S.C. § 1915
    (g). See 5th Cir.
    R. 42.2; Alexander v. Tex. Dep’t of Crim. Just., 
    951 F.3d 236
    , 241 (5th Cir.
    2020). Hernandez has previously garnered two additional strikes, for a new
    total of four. See Hernandez v. Egwe, No. 20-40089, at 3 (5th Cir. Mar. 23,
    2021) (unpublished). He is therefore barred from proceeding in forma pau-
    peris in any civil action or appeal filed while he is incarcerated or detained in
    any facility unless he is under imminent danger of serious physical injury. See
    § 1915(g).
    3