     Case: 12-40968       Document: 00512221328         Page: 1     Date Filed: 04/25/2013




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

                                                                            FILED
                                                                           April 25, 2013
                                     No. 12-40968
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

RODERICK ALLEN BATISTE,

                                                  Plaintiff-Appellant

v.

ALVIN L. HARRIS; PERCY CHAVIS, JR.; WILLIAM T. MURPHY; CHAMEKA
L. PURIFOY; SHARI A. HENDRY,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:12-CV-3


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Roderick Allen Batiste, Texas prisoner # 1265531, moves for leave to
proceed in forma pauperis (“IFP”) and for appointment of counsel on appeal from
the district court’s dismissal under 28 U.S.C. § 1915A(b)(1) of his civil rights
complaint. By moving to proceed IFP, Batiste is challenging the district court’s
certification that the appeal is not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997).


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40968

      Our inquiry into an appellant’s good faith “is limited to whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and
citation omitted). We may dismiss the appeal if it is frivolous. See Baugh, 117
F.3d at 202 n.24; 5TH CIR. R. 42.2. We review a district court determination that
a case is frivolous for abuse of discretion. See Berry v. Brady, 192 F.3d 504, 507
(5th Cir. 1999).
      Batiste makes five claims of error in his motion. First, Batiste argues that
the district court abused its discretion by relying on factually inaccurate
documents at his Spears1 hearing. However, the document in question, which
indicated that Batise was placed in pre-hearing detention pending an
investigation into his alleged assault of another inmate, was consistent with
Batiste’s allegations that he was placed in pre-hearing detention.
      Second, Batiste argues that the district court erred in dismissing his
property deprivation claim under the Parratt/Hudson2 doctrine. “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) (footnote and internal quotation marks omitted).
Batiste alleges that the defendants violated prison policy by having his property
packed by another inmate while he was in pre-hearing detention, and by then
leaving his property unsecured. However, a “prison official’s failure to follow the
prison’s own policies, procedures or regulations does not constitute a violation
of due process, if constitutional minima are nevertheless met.” Brewster v.



      1
          Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
      2
        Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled in part on other grounds,
Daniels v. Williams, 474 U.S. 327 (1986); Hudson v. Palmer, 468 U.S. 517, 534 (1984).

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                                    No. 12-40968

Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (per curiam) (internal quotation marks
and citation omitted). In this case, “the Texas tort of conversion provides
[Batiste] with an adequate post-deprivation remedy.” Id.
      Third, Batiste argues that his right to equal protection was violated
because prison rules were not followed in his case. To prevail on his equal
protection claim, Batiste must show “that (a) a state actor intentionally
discriminated against [him] because of membership in a protected class[,] or (b)
he has been intentionally treated differently from others similarly situated and
that there is no rational basis for the difference in treatment.” Gibson v. Tex.
Dept. of Ins.—Div. of Workers’ Comp., 700 F.3d 227, 238 (5th Cir. 2012) (internal
quotation marks and citation omitted). Batiste does not allege that he is a
member of a protected class. Further, Batiste has not shown that he was treated
differently than similarly situated prisoners.
      Fourth, Batiste argues that his right to be free from compelled self-
incrimination was violated when Lieutenant Alvin Harris threatened to seize his
property if he did not admit to assaulting another inmate. However, Batiste
does not show that he made a self-incriminating statement.
      Fifth, Batiste argues that he was a victim of fraud because the document
that charged him with assault allegedly was forged. To the extent that Batiste
complains of property loss due to fraud, as discussed above, his claim is barred
by the Parratt/Hudson doctrine. To the extent that Batiste challenges being
placed in pre-hearing detention based on a forged document, he has not shown
that placement in pre-hearing detention deprived him of a liberty interest
protected by the Due Process Clause. See Hernandez v. Velasquez, 522 F.3d 556,
562 (5th Cir. 2008) (per curiam).
      Accordingly, Batiste’s appeal lacks arguable merit and therefore is
frivolous. See Howard, 707 F.2d at 220. As a result, Batiste’s motions for leave
to proceed IFP and for appointment of counsel on appeal are DENIED, and his
appeal is DISMISSED as frivolous. See Castro Romero v. Becken, 256 F.3d 349,

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353-54 (5th Cir. 2001); Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. The
dismissal of this appeal as frivolous counts as a strike for purposes of § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). The district
court’s dismissal of Batiste’s complaint under § 1915A(b)(1) also counts as a
strike. Batiste is warned that if he accumulates three strikes, he may not
proceed IFP 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).




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