     Case: 16-50775      Document: 00514538841         Page: 1    Date Filed: 07/03/2018




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

                                                                                FILED
                                    No. 16-50775                             July 3, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
CHRISTOPHER L. MCKIVER,

                                                 Plaintiff-Appellant

v.

LINDA GARCIA, Correctional Officer 5; MIRANDA GONZALES, Correctional
Officer 4,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:16-CV-478


Before WIENER, DENNIS and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Christopher L. McKiver, Texas prisoner #785351, appeals the district
court’s sua sponte dismissal of his 42 U.S.C. § 1983 complaint as frivolous and
for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)–(ii) and
§ 1915A(b)(1). McKiver’s claim arises from the confiscation of his personal
property by prison officials.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-50775    Document: 00514538841     Page: 2   Date Filed: 07/03/2018


                                 No. 16-50775

      The district court found that McKiver failed to allege a constitutional
procedural due process violation because the prison grievance procedure and
state tort law provided a meaningful post-deprivation remedy for the loss of
his property. See Hudson v. Palmer, 468 U.S. 517, 533 (1984). Affording
McKiver’s pro se brief liberal construction, see Grant v. Cuellar, 59 F.3d 523,
524 (5th Cir. 1995), he alleges — and the record suggests — that the
deprivation may have resulted from established state procedure rather than
random and unauthorized action, meaning that a Section 1983 claim could be
appropriate. See Zinermon v. Burch, 494 U.S. 113, 115, 138 (1990); Augustine
v. Doe, 740 F.2d 322, 327–29 (5th Cir. 1984). Because the defendants were not
served in the district court, the Texas Attorney General appeared in this
appeal as amicus curiae and filed a letter brief, suggesting that we remand this
case to the district court as the record does not reflect whether the taking was
pursuant to an established state procedure or was random and unauthorized.
      Accordingly, we VACATE the district court’s dismissal of McKiver’s
Section 1983 complaint and REMAND for further proceedings. We express no
opinion on the ultimate disposition of the complaint.




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