                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                           F I L E D
                         IN THE UNITED STATES COURT OF APPEALS
                                                                                           October 7, 2004
                                  FOR THE FIFTH CIRCUIT
                                                                                       Charles R. Fulbruge III
                                                                                               Clerk
                                             No. 03-21208



BILLY FREDERICK ALLEN,

                                                         Plaintiff-Appellant,

versus

JOHNNY M. THOMAS; RONNIE MAJOR;
ROBERT DICKEY; JOHN DOE, #4; DOE, #5,


                                                         Defendants-Appellees.

                                          --------------------
                             Appeal from the United States District Court
                                 for the Southern District of Texas
                                          --------------------

Before BENAVIDES, DENNIS, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

         Billy Frederick Allen, Texas prisoner # 366613, appeals the district court’s dismissal of his

42 U.S.C. § 1983 complaint against three correctional officers: Major Johnny M. Thomas, Ronnie

Major, and Robert Dickey. The district court held that the defendants were entitled to summary

judgment on the issue of qualified immunity, holding that Allen had not met his threshold burden of

demonstrating a violation of a constitutional right. See Kipps v. Caillier, 205 F.3d 203, 204 (5th Cir.

2000).

         Allen argues that the district court erred in granting the defendants’ motion to dismiss and for

summary judgment on his claim that his due process rights were violated during the confiscation of
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his word pro cesso r and radio under the authority of prison Administrative Directive 03.72. He

contends that the district court erred in dismissing and/or granting summary judgment on his claims

that 1) Dickey violated his constitutional right to due process; 2) Administrative Directive 03.72 is

unconstitutionally vague; 3) the confiscation violated his right to freedom of speech; and 4) the

confiscation was retaliatory. Allen also argues that 1) the district court deprived him of the

opportunity to amend his complaint; 2) the district court should not have considered the defendants’

Exhibit A as competent summary judgment evidence; 3) the district court abused its discretion in

denying him appointed counsel; 4) the district court abused its discretion in denying his motion for

sanctions; and 5) the district court abused its discretion in denying him leave to file a supplemental

complaint. Except as discussed below, all aspects of the district court’s judgment are affirmed.

       In granting the defendants’ motion to dismiss and for summary judgment on Allen’s due

process claim, the district court reasoned that Allen did not have a 42 U.S.C. § 1983 claim for

wrongful confiscation of property because Texas had an adequate post-deprivation remedy for

negligent or intentional deprivations of property. Under the Parratt/Hudson1 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.” Zinermon v. Burch, 494 U.S. 113, 115 (1990). Conduct is

not “random and unauthorized” for purposes of the Parratt/Hudson doctrine if the state “delegated

to [the defendants] the power and authority to effect the very deprivation complained of.” Zinermon,

494 U.S. at 138.




       1
        Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v. Taylor, 451 U.S. 527 (1981),
overruled in part by, Daniels v. Williams, 474 U.S. 327, 330–31 (1986).
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       Because the undisputed facts reveal that Allen’s word processor and radio were confiscated

under the authority of a prison administrative direct ive, the confiscation was not a random,

unauthorized act by a state employee. See Zinermon, 494 U.S. at 138-39; Brooks v. George County,

Mississippi, 84 F.3d 157, 165–66 (5th Cir. 1996). The district court erred in applying the

Parratt/Hudson doctrine. Therefore, we VACATE that portion of the district court’s order granting

the defendants’ motion to dismiss and for summary judgment on Allen’s claim that the property

confiscation violated his procedural due process rights and REMAND the case for further

proceedings on that claim. In doing so, we express no view on the ultimate merits of the claim.

Because the district court’s grant of summary judgment on Allen’s claim against Dickey on grounds

of lack of personal involvement was premature, we VACATE the district court’s grant of summary

judgment on Allen’s due process claim against Dickey and REMAND for further proceedings.

       In granting summary judgment for the defendants on Allen’s claim that the property

confiscation was in retaliation for his exercise of his First Amendment rights, the district court

concluded that Allen presented no more than his own personal belief that “but for” a retaliatory

motive, his property would not have been seized. To state a valid claim for retaliation, an inmate

must either produce direct evidence of motivation or “‘allege a chro nology of events from which

retaliation may plausibly be inferred.’” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (quoting

Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988)).

       Allen’s verified complaint alleges such a chronology of events. Allen asserts that shortly after

he submitted letters critical of the prison to the mail room for mailing, Thomas ordered Major to seize

from his living quarters his word processor and radio, property which Allen had possessed for years

and which he had registered with the prison. The district court’s refusal to allow Allen to depose two

mail room employees, reasoning that their testimony would not raise a genuine issue of material fact
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                                                -4-

for trial, was premature. We VACATE the district court’s grant of summary judgment for the

defendants on this claim and REMAND for further proceedings.

       In denying Allen’s motion for the appointment of counsel, the district court concluded that

no exceptional circumstances existed to require appointment of counsel. The district court provided

no analysis of the relevant factors this Circuit uses to decide whether to appoint counsel for an

indigent party. See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982). Because the record

does not clearly show that exceptional circumstances do not exist, the district court must present

specific findings explaining why counsel was denied. See Jackson v. Dallas Police Dep’t, 811 F.2d

260, 262 (5th Cir. 1986). Thus, we VACATE the district court’s denial of Allen’s motion and

REMAND for further proceedings.

       For the reasons stated, we AFFIRM IN PART, VACATE IN PART, and REMAND to the

district court for further proceedings consistent herewith.
