Propes v. Commissary Sales , 169 F. App'x 183 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-41498
Conference Calendar
JOHNNIE R. PROPES,
Plaintiff-Appellant,
versus
J. MAYS, FNU JACKSON; DETENTION COLLIN COUNTY; FNU BOX;
COMMISSARY SALES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:03-CV-237
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Johnnie R. Propes, Texas prisoner number 1178904, proceeding
pro se and in forma pauperis (IFP), appeals the dismissal of his
42 U.S.C. § 1983 action as frivolous and for failure to state a
claim upon which relief could be granted.
On appeal, Propes argues that the defendants deprived him of
his right to due process by overcharging him for prison
commissary purchases and by failing to investigate his complaint
that he was being overcharged. He further argues that his trust
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-41498
-2-
account is a liberty interest protected under the Equal
Protection Clause and that the theft of his property violated his
equal protection rights.
We review a dismissal as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i) for an abuse of discretion. Taylor v.
Johnson, 257 F.3d 470, 472 (5th Cir. 2001). We review a
dismissal for failure to state a claim upon which relief may be
granted de novo. Hart v. Hairston, 343 F.3d 762, 763-64 (5th
Cir. 2003); § 1915(e)(2)(B)(ii).
Negligent or intentional deprivations of property by state
officials do not rise to the level of due process violations if
state law provides adequate post-deprivation remedies. Murphy v.
Collins, 26 F.3d 541, 543-44 (5th Cir. 1994). Texas law provides
an adequate post-deprivation remedy for the loss of property
occasioned by the misconduct of state officials. Id.To the extent that Propes seeks relief for an alleged
violation of his due process rights resulting from the prison’s
grievance procedures, the district court did not err in
dismissing his claim as frivolous. “A prisoner has a liberty
interest only in freedoms from restraint imposing atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Geiger v. Jowers, 404 F.3d 371,
373-74 (5th Cir. 2005) (internal citation and quotation omitted).
Because Propes has no liberty interest in the resolution of his
grievance concerning the loss of property, the defendants’
No. 04-41498
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alleged failure to address his grievance does not constitute the
violation of a constitutional right.
A prisoner’s vague and conclusory allegations that his equal
protection rights have been violated are insufficient to raise an
equal protection claim. Pedraza v. Meyer, 919 F.2d 317, 318 n.1
(5th Cir. 1990). As Propes offers no supporting case law for his
assertion that his funds are a liberty interest and no evidence
that he is being treated differently from similarly situated
white prisoners, his equal protection claims are vague and
conclusory. Thus, Propes has failed to state a viable
constitutional claim under § 1983 and the district court did not
abuse its discretion by dismissing his complaint as frivolous.
See Murphy, 26 F.3d at 543-44; Harper v. Showers, 174 F.3d 716,
718 (5th Cir. 1999); § 1915(e)(2)(B)(i). Propes’s appeal is
frivolous and therefore is dismissed. See Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
In Propes v. Dretke, No. 04-50822 (5th Cir. Apr. 20, 2005),
we imposed the 28 U.S.C. § 1915(g) bar against Propes. We warn
Propes that further filing of frivolous complaints or pleadings
may result in additional sanctions against him.
APPEAL DISMISSED; SANCTION WARNING ISSUED.