Jackson v. Vasquez et al, No. 4:2014cv01781 - Document 5 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER granting 4 MOTION for Leave to File Amended Petition for Habeas Corpus, and 2 MOTION/APPLICATION to Proceed In Forma Pauperis. Prisoner Civil Rights Complaint 1 is DISMISSED. (Signed by Judge Sim Lake) Parties notified.(amwilliams, 4) (Main Document 5 replaced on 7/22/2014) (amwilliams, 4).
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION § § LEE A. JACKSON, TDCJ # 1058793, Plaintiff, v. COV JESSICA VASQUEZ, et al., § § § § § § CIVIL ACTION NO. H-14-1781 § Defendants. § MEMORANDUM OPINION AND ORDER Lee A. Jackson, an inmate of the Texas Department of Criminal Justice (TDCJ), has filed a civil rights complaint under 42 U.S.C. § 1983 against TDCJ-CID Correctional Officer (COV) Jessica Vasquez and COV Christine Alfred. Jackson complains that he was deprived of personal property without being afforded due process. After reviewing the complaint, the court has determined that this action should be dismissed. I. Allegations and Claims Jackson states that he was placed in pre-hearing detention (PHD) for a prison rule violation on January 21, Entry No.1, p. 4. On that same day, 2014. Docket an unnamed correctional officer confiscated and inventoried his property, which was then placed in the property room. Jackson was later moved to solitary confinement where he remained until January 29, 2014. Officer Alfred returned Jackson's property to him when he was released from solitary confinement. Upon inspecting the property, Jackson discovered that $60 to $100 of his personal items were missing. When Jackson questioned Officer Alfred about the missing property, she responded that she had given Jackson what Officer Vasquez had given her in the property room. grievances complaining that Jackson filed Step 1 and Step 2 his property was taken without authorization and that no adequate investigation had been made. Both grievances were rejected. Jackson contends that his property was seized in violation of the Fourteenth Amendment. Docket Entry No.1, p. 4. He seeks nominal, injunctive, and declaratory relief. II. Analysis Jackson asserts that his rights were violated under 42 U.S.C. § 1983. This statute provides a private right of action for damages to individuals who are deprived of "any rights , privileges, or immunities" protected by the Constitution or federal law by any person acting under the color of state law. Breen v. Texas A&M Univ., 485 F.3d 325, 332 42 U. S. C. (5th Cir. § 1983; 2007). Jackson alleges that he lost his property when the defendants took it from him without affording him due process. actionable if the State provides a remedy. Such a claim is not Hudson v. Palmer, 104 S.Ct. 3194 (1984); Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009); law Lewis v. Woods, 848 F.2d 649, 651 (5th Cir. 1988). provides property. an adequate remedy for unauthorized Texas taking of Brewster, 587 F.3d at 768, citing Murphy v. Collins, 26 -2 - F.3d 541, 543 F.3d 162, (5th Cir. 164 1994)) (5th Cir. 1995) i see also Cathey v. Guenther, 47 (Texas law provides an adequate remedy for unauthorized taking of property). asserted an actionable § Jackson has not 1983 claim because he has not demonstrated that there is no state remedy available to him. Gee v. Pacheco, 627 F.3d 1178, 1194 (10th Cir. 2010). Jackson provisions has of 28 filed this U.S.C. § action 1915(e), as pauper. the Under the district a courts are authorized to dismiss in forma pauperis complaints if they are frivolous. Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999). A complaint is frivolous if it lacks an arguable basis in law. Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). This complaint is DISMISSED as frivolous. III. Application to Proceed In Forma Pauperis Jackson's Application to Proceed In Forma Pauperis Entry No.2) is GRANTED. (Docket However, Jackson is obligated to pay the entire filing fee ($350.00) under 28 U.S.C. partial filing fee shall be ordered. § 1915(b) No initial The TDCJ-CID Inmate Trust Fund shall deduct 20% of each deposit made to Jackson's inmate account and forward the funds to the District Clerk on a regular basis, in compliance with the provisions of 28 U.S.C. until the fee has been paid. -3- § 1915(b) (2), IV. Conclusion The court ORDERS the following: 1. The Application to Proceed In Forma Pauperis Entry No.2) is GRANTED. (Docket 2. The TDCJ Inmate Trust Fund is ORDERED to deduct 20 percent from each deposit made to the account of Lee Al Jackson (TDCJ No. 1058793) and forward the funds to the Clerk of this court on a regular basis, in compliance with 28 U.S.C. § 1915 (b) (2), until the entire filing fee ($350.00) has been paid. 3. The Motion for Leave to Amend the Complaint (Docket Entry No.4) is GRANTED. 4. The prisoner civil rights complaint (Docket Entry No.1) , filed by Inmate Lee A. Jackson (TDCJ No. 1058793), is DISMISSED as frivolous. 28 U.S.C. § 1915(e). The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the parties; the TDCJ - Office of the General Counsel, P.O. Box 13084, Austin, Texas 78711, Fax Number (512) 936-2159; the TDCJ-CID Inmate Trust Fund, P.O. Box 60, Huntsville, Texas 77342-0060; and the Pro Se Clerk's Office for the United States District Court, Eastern District of Texas, Tyler Division, 211 West Ferguson, Tyler, Texas 75702. SIGNED at Houston, Texas, on this 21 st day of July, 2014. 7 SIM LAKE UNITED STATES DISTRICT JUDGE -4-
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