     Case: 10-40183 Document: 00511371158 Page: 1 Date Filed: 02/03/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 3, 2011

                                       No. 10-40183                         Lyle W. Cayce
                                                                                 Clerk

JAMES L. GARDNER

                                                   Plaintiff-Appellant
v.

WARDEN DAVID HUDSON, Co5 N. BURGESS, WARDEN STEVEN N.
RICH, and VICKI S. HARTWICK, Stiles Unit Property Officer

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 5:09-CV-189


Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       James L. Gardner, Texas prisoner #1193858, filed this 42 U.S.C. § 1983
action against David Hudson, Warden of the Telford Unit; N. Burgess, property
officer of the Telford Unit; Steven N. Rich, Warden of the Stiles Unit; and Vicki
S. Hartwick, property officer of the Stiles Unit, for illegally losing or destroying
his property. Gardner appeals the district court’s dismissal of his complaint for
failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-40183 Document: 00511371158 Page: 2 Date Filed: 02/03/2011



                                       No. 10-40183

§ 1915A(b)(1) based on the Parratt/Hudson 1 doctrine.                    The district court
determined that his property claim was barred because he had alleged a
negligent deprivation of property for which Texas provided an adequate post-
deprivation remedy.
       Gardner argues that the district court erred in dismissing his property
claim as barred by the Parratt/Hudson doctrine because his property should
have been stored by TDJC officials pursuant to Administrative Directive 03.72
when he was rushed to the hospital. Gardner alleged in the district court that
his property was “lost” because the prison officials failed to follow the prison
policy to store, tag, and safeguard his property as required by administrative
directive when he was taken from the Telford Unit by ambulance. He did not
allege that his property was confiscated pursuant to prison policy.2                       His
allegations concerning the defendants’ actions were exactly the type of random
and unauthorized conduct to which the Parratt/Hudson doctrine was designed
to apply. See Allen v. Thomas, 388 F.3d 147 (5th Cir. 2004).
       Citing T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.005(b), Gardner argues that
he was deprived of his opportunity to seek adequate post-deprivation remedies
because the prison officials did not return his grievances to him in a timely
manner so that he could meet the 31-day filing deadline.                     Section 14.005
provides for the exhaustion of prison grievance remedies and requires an inmate
to file his claim “before the 31st day after the date the inmate receives the
written decision from the grievance system.” § 14.005(b). “The time for filing


       1
        Parratt v. Taylor, 451 U.S. 527, 541-44 (1981) (overruled in part not relevant here,
Daniels v. Williams, 474 U.S. 327 (1986)); Hudson v. Palmer, 468 U.S. 517, 533 (1984).
       2
        In his Objections to the Magistrate’s Report, Gardner for the first time claimed that
his property was confiscated under the authority of A.D. 03.72. However, he did not properly
raise that claim before the district court, and he has failed to show that the district court
abused its discretion by failing to recognize his Objections as a motion to amend his complaint.
See United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992); Harrison v. Smith, 83
F.App’x 630 (5th Cir. 2003) (per curiam).

                                               2
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                                  No. 10-40183

suit pursuant to Section 14.005(b) runs from the date the inmate receives the
written decision from the grievance system, not the date the Department issues
its final decision on the matter.” Mason v. Wood, 282 S.W.3d 189, 193 (Tex. App.
2009). The alleged delay in returning the grievances to Gardner did not affect
his ability to file his claim in state court because the 31 days run from the date
the inmate “receives” the decision. See id.
      Referring to the magistrate judge’s restatement of his allegations, Gardner
argues that the district court erred in adopting the findings and conclusions of
the magistrate judge because that report contains either perjury or direct
evidence of ex parte communication between the district court and the
defendants. Gardner’s accusations of perjury or improper ex parte contact are
baseless.
      The district court did not err in dismissing Gardner’s complaint for failure
to state a claim. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998).
Gardner’s appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it is
dismissed. See 5 TH C IR. R. 42.2. Gardner is informed that the dismissal of this
appeal as frivolous and the district court’s dismissal under 1915A(b)(1) count as
two strikes for the purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996).         Gardner is cautioned that if he
accumulates three strikes, he may not proceed in forma pauperis (IFP) 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).
      APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.




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