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

                                                 FILED
                                                                             May 8, 2009
                                     No. 08-60558
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

AMOS F SMITH

                                                   Plaintiff-Appellant

v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS

                                                   Defendant-Appellee


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:08-CV-147


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Amos F. Smith, Mississippi prisoner # 92541 appeals the dismissal, for
failure to state a claim upon which relief could be granted, of his civil rights
action. Smith’s complaint included a claim to recover funds allegedly taken from
his prison account without authorization. Smith also claimed that he was being
denied access to the courts because he did not have access to a law library and




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60558

because the inmate legal assistance program would not assist him in filing a tort
action to recover the missing funds.
      A dismissal under 29 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim
upon which relief may be granted is reviewed under the same de novo standard
as a dismissal under Federal Rule of Civil Procedure 12(b)(6). Black v. Warren,
134 F.3d 732, 733-34 (5th Cir. 1998).        “The complaint must be liberally
construed, with all reasonable inferences drawn in the light most favorable to
the plaintiff.” Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005).
Due Process Claim
      The district court dismissed Smith’s claim regarding the taking of his
funds pursuant to Hudson v. Palmer, 468 U.S. 517 (1984).             “Under the
Parratt/Hudson doctrine, a state actor’s random and unauthorized deprivation
of a plaintiff’s property does not result in a violation of procedural due process
rights if the state provides an adequate postdeprivation remedy.” Alexander v.
Ieyoub, 62 F.3d 709, 712 (5th Cir. 1995) (footnote omitted); Hudson, 468 U.S. at
533; Parratt v. Taylor, 451 U.S. 527, 541-44 (1981), overruled in part by Daniels
v. Williams, 474 U.S. 327, 330-31 (1986).      The Parratt/Hudson doctrine is
applicable if (1) the deprivation was unpredictable or unforeseeable;
(2) predeprivation process would have been impossible or impotent to counter
the state actors’ particular conduct; and (3) the conduct was unauthorized in the
sense that it was not within the officials’ express or implied authority. Caine v.
Hardy, 943 F.2d 1406, 1413 (5th Cir. 1991) (en banc).
      Smith argues prison officials have engaged in a “pattern” of taking money
from inmates’ accounts. In his complaint, Smith alleged that his funds were
taken pursuant to the policy, practices, and customs of the Mississippi
Department of Corrections. “As this Court noted, where employees are acting
in accord with customary procedures, the ‘random and unauthorized’ element
required for the application of the Parratt/Hudson doctrine is simply not met.”



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                                  No. 08-60558

Brooks v. George County, Miss., 84 F.3d 157, 165 (5th Cir. 1996) (internal
citations omitted).
      Smith’s allegations, which this court must accept as true, even if they are
doubtful in fact, see Bell Atl. Corp. v. Twombly, 550 U.S. 544,        , 127 S. Ct.
1955, 1965 (2007), preclude application of the Parratt/Hudson doctrine at this
stage of the proceedings. See Woodard, 419 F.3d at 351; Augustine v. Doe, 740
F.2d 322, 327-29 (5th Cir. 1984). Accordingly, we vacate the district court’s
dismissal of Smith’s claim regarding the alleged taking of funds from his prison
account and remand for further proceedings.
Claim of denial of access to the courts
      Smith argues that his right of access to the courts is being violated because
there is no law library and he cannot obtain legal assistance to pursue other
remedies regarding the alleged taking of his funds. The district court did not
address this claim.
      Prisoners have a constitutionally protected right of access to the courts.
Bounds v. Smith, 430 U.S. 817, 821 (1977). Given Smith’s factual allegations
regarding the absence of a law library and his inability to obtain legal assistance
in preparing a tort action to recover his funds, the district court erred in
dismissing Smith’s claim of denial of access to the courts without addressing it.
Accordingly, the dismissal of this claim is vacated and the claim is remanded for
further proceedings.
      VACATED AND REMANDED.




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