     Case: 09-41252     Document: 00511187195          Page: 1    Date Filed: 07/28/2010




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

                                                 FILED
                                                                            July 28, 2010
                                     No. 09-41252
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

DEDRICK LAMONE JENKINS,

                                                   Plaintiff-Appellant

v.

BRAD LIVINGSTON; TODD FOXWORTH; MARK DEARING,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:09-CV-411


Before D EMOSS, STEWART, and ELROD, Circuit Judges
PER CURIAM:*
        Dedrick Lamone Jenkins, Texas prisoner # 1307915, appeals the dismissal
of his 42 U.S.C. § 1983 complaint, which pertained to a prison disciplinary
conviction he received following the alleged theft of his property by an inmate
named Ronald Davis and his physical altercation with Davis. Jenkins named
as defendants Brad Livingston, the executive director of the Texas Department
of Criminal Justice; Todd Foxworth, warden of the unit where Jenkins was
housed; and Mark Dearing, a sergeant involved in Jenkins’s disciplinary case.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                 No. 09-41252

The district court’s dismissal of Jenkins’s complaint pursuant to 28 U.S.C.
§ 1915A(b)(1) is reviewed de novo. Ruiz v. United States, 160 F.3d 273, 275 (5th
Cir. 1998).
      Jenkins first challenges the district court’s dismissal of his claim of
deliberate indifference to his safety.    Prison officials have a duty under the
Eighth Amendment to protect inmates from violence at the hands of other
prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994). However, not every
injury inflicted by one inmate against another inmate rises to the level of a
constitutional violation. Id. at 834; Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir.
1995). To establish a failure-to-protect claim, an inmate must show that the
conditions of his incarceration posed “a substantial risk of serious harm” and
that prison officials were deliberately indifferent to his need for protection.
Farmer, 511 U.S. at 834. Because Jenkins did not allege in the district court
that the defendants knew he would be attacked by Davis or knew he otherwise
faced an excessive risk to his health or safety, the district court did not err in
dismissing his claim of deliberate indifference to his safety. See Farmer, 511
U.S. at 837.
      Second, Jenkins complains that the inadequate investigation of and
response to Davis’s alleged theft and assault resulted in the loss of Jenkins’s fan
and watch. The Fourteenth Amendment protects against the deprivation of
one’s property by state actors without due process of law. Parratt v. Taylor, 451
U.S. 527, 536-37 (1981), overruled on other grounds by Daniels v. Williams, 474
U.S. 327, 330-31 (1986). However, where the individuals acting under the color
of state law infringe a property interest through “random and unauthorized”
acts, the existence of adequate postdeprivation state remedies satisfies
procedural due process requirements by providing a means of redress for the
property deprivation and, accordingly, justifies dismissal of a § 1983 claim that
is based on the infringement. Id. at 537-43; Augustine v. Doe, 740 F.2d 322, 327-
28 (5th Cir. 1984). Because Texas provides an adequate state postdeprivation

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                                 No. 09-41252

remedy, the district court did not err in dismissing Jenkins’s claim of property
loss resulting from any deficiency in the defendants’ response to Davis’s conduct.
See Murphy v. Collins, 26 F.3d 541, 543-44 (5th Cir. 1994).
      Third, Jenkins contends that his procedural due process rights were
violated with respect to his disciplinary conviction. Jenkins would be entitled
to procedural due process with respect to his disciplinary proceeding if the
hearing implicated a protected liberty interest.       See Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989). Jenkins alleged that his disciplinary
conviction resulted in a punishment of 15 days of commissary restriction and one
day of solitary confinement, as well as a two-year set off in his parole. None of
those consequences implicated a protected liberty interest. See Madison v.
Parker, 104 F.3d 765, 768 (5th Cir. 1997) (commissary restriction); Luken v.
Scott, 71 F.3d 192, 193 (5th Cir. 1995) (solitary confinement); Orellana v. Kyle,
65 F.3d 29, 32 (5th Cir. 1995) (parole). Additionally, any property interest
stemming from the loss of Jenkins’s fan and watch was not implicated by his
disciplinary conviction because, according to Jenkins’s allegations, those items
were stolen by Davis before Jenkins’s disciplinary complaint was filed.
      Fourth, Jenkins contends that Foxworth’s response to the grievance
Jenkins filed regarding the loss of his fan and watch constituted discrimination
based on Jenkins’s severe mental disorder. To the extent that Jenkins claims
discrimination based on violation of a prison regulation, we will not consider the
claim because it is raised for the first time on appeal. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). In any event, a claim based on a
prison regulation violation would not be cognizable under § 1983 because “[a]
claim for relief under § 1983 must allege the deprivation of a right secured by
the Constitution or the laws of the United States by a defendant acting under
color of state law.” Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002).
Insofar as Jenkins’s contention may be liberally construed as pertaining to the
district court’s dismissal of his discrimination claim under the Americans with

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                                No. 09-41252

Disabilities Act (ADA), Jenkins has not briefed any argument challenging the
reasons for the district court’s decision and thus has failed to show that the
district court erred in dismissing his ADA claim. See Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987).
      Fifth, Jenkins contends that the magistrate judge erred by not responding
to his objections to the magistrate judge’s report and recommendation. This
contention is unavailing because the district court conducted a de novo review
of Jenkins’s objections to the report and recommendation and determined that
they were without merit.
      Jenkins’s contentions challenging the district court’s dismissal of his
§ 1983 complaint are unavailing. Accordingly, the district court’s judgment is
AFFIRMED.




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