     Case: 15-11009      Document: 00514205072         Page: 1    Date Filed: 10/23/2017




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

                                    No. 15-11009                                   FILED
                                  Summary Calendar                           October 23, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
JAMES A. BROWN,

                                                 Plaintiff-Appellant

v.

SERGEANT NFN VASQUEZ; CORRECTIONAL OFFICER III R. HUGHES,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:14-CV-198


Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
       James A Brown, Texas prisoner # 1893446, filed a 42 U.S.C. § 1983
complaint alleging violations of his constitutional rights stemming from two
cell extractions. He named as defendants Sergeant Vasquez and Correctional
Officer R. Hughes. Pursuant to 28 U.S.C. § 636, Brown consented to proceed
before the magistrate judge (MJ). Brown now appeals the MJ’s dismissal of
his complaint as frivolous and for failure to state a claim pursuant to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). We review the dismissal de novo.
See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
      A de novo review reveals the MJ did not err in dismissing Brown’s
excessive force claim for failure to state a claim. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Geiger, 404 F.3d at 373.        Construing the facts from the
complaint in Brown’s favor, no reasonable jury could find that the defendants’
actions were not “a good-faith effort to maintain or restore discipline.” Hudson
v. McMillian, 503 U.S. 1, 7 (1992) (“[T]he core judicial inquiry [in an excessive-
force claim] is . . . whether force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to cause harm.”). The fact
that force was required at all was due to Brown’s repeated failure to comply
with orders and his resistance to the extraction team’s efforts to restrain him
once they entered his cell. Under the circumstances, the defendants used no
more force than was reasonably necessary to secure Brown.
      Next, Brown challenges the MJ’s conclusion that his prison disciplinary
proceeding claims were barred by Heck v. Humphrey, 512 U.S. 477, 486-87
(1994), and Edwards v. Balisok, 520 U.S. 641, 646-48 (1997). If Brown’s claims
are credited, they necessarily imply that the finding of guilt and punishment
for his prison violation was invalid. Because Brown has not shown that the
disciplinary decision has been overturned, he cannot maintain a § 1983 action
for damages. See Edwards, 520 U.S. at 646-48; Heck, 512 U.S. at 486-87.
Likewise, Brown cannot recover in a § 1983 action the good-time credits
forfeited in his disciplinary proceeding. See Clarke v. Stalder, 154 F.3d 186,
189 (5th Cir. 1998) (en banc).
      Brown also asserts that the MJ erred in dismissing his retaliation claim
for failure to state a claim. According to Brown, the defendants engaged in a
“campaign of harassment and retaliation” by denying him a meal, spraying



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him with chemical agents, conducting unnecessary strip searches, committing
him to crisis management under false pretenses, and taking his property.
Brown has failed to offer any direct evidence of the defendants’ retaliatory
motive or a chronology of events from which retaliation could plausibly be
inferred. See Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997); Woods
v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
       To the extent Brown argues that the MJ improperly determined that his
property loss claim was barred by the Parratt/Hudson 1 doctrine, his argument
is without merit. “Under the Parratt/Hudson doctrine, a deprivation of a
constitutionally protected property interest caused by a state employee’s
random, unauthorized conduct does not give rise to a § 1983 procedural due
process claim, unless the State fails to provide an adequate postdeprivation
remedy.”     Allen v. Thomas, 388 F.3d 147, 149 (5th Cir. 2004) (internal
quotation marks and citation omitted). Texas’s tort of conversion provides
adequate state post-deprivation remedies to prisoners who claim due-process
violations based on deprivation of their property. See Murphy v. Collins, 26
F.3d 541, 543-44 (5th Cir. 1994); see also Peters v. Klevenhagen, 1995 WL
581581, at 1 (5th Cir. 1995); TEX. GOV’T CODE §§ 501.007, 501.008.
       Similarly unavailing is Brown’s contention that the MJ erred by not
providing him an opportunity to amend before dismissing his § 1983 complaint.
The record reflects that the MJ ordered Brown to provide a more definite
statement to better ascertain Brown’s claims. Brown complied. Even with the
opportunity to provide a more definite statement, Brown’s claims were found
to be inadequate, demonstrating that Brown had already alleged his best case
and that any further amendment would not have stated a valid § 1983 claim.



       1 Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 541-44
(1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986).


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See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); Eason v. Thaler, 14
F.3d 8, 9 (5th Cir. 1994).
      Finally, Brown briefs no argument, separate from his assertion of
retaliation, that the defendants violated his Eighth Amendment rights by
spraying him with chemical agents on September 2, 2014, and that Officer
Hughes violated his Fourth Amendment rights by conducting unnecessary
strip searches on September 2, 2014. When an appellant fails to identify any
error in the district court’s analysis, it is the same as if the appellant had not
appealed that issue. Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987). Thus, these arguments are deemed abandoned.
See id. For the first time on appeal, Brown raises a failure-to-protect claim.
Because Brown did not raise this claim in the district court, we need not
consider it on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342
(5th Cir. 1999).
      Brown has not shown that the MJ erred in dismissing his § 1983
complaint as frivolous and for failure to state a claim. See Geiger, 404 F.3d at
373. As a result, the judgment of the MJ is affirmed. The MJ’s dismissal of
Brown’s complaint counts as a strike for purposes of 28 U.S.C. § 1915(g).
Brown also has two prior strikes from complaints that were dismissed as
frivolous and for failure to state a claim. See Brown v. Operman, 1:14-cv-00736
(W.D. Tex. Nov. 12, 2014); Brown v. Joseph, 1:13-cv-00843 (W.D. Tex. Sept. 18,
2014). Because Brown has accumulated three strikes, he is advised that he is
now barred from proceeding in forma pauperis 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).
      Further, we warn Brown that frivolous, repetitive, or otherwise abusive
filings will invite the imposition of sanctions, which may include dismissal,



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monetary sanctions, and restrictions on his ability to file pleadings in this court
and any court subject to this court’s jurisdiction. See Coghlan v. Starkey, 852
F.2d 806, 817 n.21 (5th Cir. 1988). Brown should review any pending appeals
and actions and move to dismiss any that are frivolous.
      AFFIRMED; § 1915(g) SANCTION BAR IMPOSED; SANCTION
WARNING ISSUED.




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