     Case: 19-40019      Document: 00515465872         Page: 1    Date Filed: 06/25/2020




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

                                                                               FILED
                                    No. 19-40019                           June 25, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
MARK CLIFF SCHWARZER,

                                                 Plaintiff-Appellant

v.

DALE WAINWRIGHT; LORIE DAVIS; KELVIN SCOTT; PATRICIA CHAPA;
ROBERT G. BEARD, JR.; PAMELA C. BAROS; TRAVIS L. WHITE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 6:18-CV-29


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Mark Cliff Schwarzer, Texas prisoner # 1433741, filed a civil rights
complaint pursuant to 42 U.S.C. § 1983 against several prison officials related
to the confiscation of property by a correctional officer. He filed the suit as a
purported class action on behalf of Texas Department of Criminal Justice




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-40019

inmates. The district court dismissed the complaint as frivolous pursuant to
28 U.S.C. § 1915A, and it denied the request for class certification.
      Schwarzer has moved to supplement the record with exhibits attached
to his appellate brief. “An appellate court may not consider new evidence
furnished for the first time on appeal and may not consider facts which were
not before the district court at the time of the challenged ruling.” Theriot
v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). Accordingly, the
motion is denied.
      We review the dismissal as frivolous pursuant to § 1915A for abuse of
discretion. See Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). A complaint
is frivolous and lacks an arguable basis in law if it is based upon an
indisputably meritless legal theory. See Neitzke v. Williams, 490 U.S. 319, 327
(1989).
      Schwarzer first challenges the dismissal of his claim based on
deprivation of property. He contends that prison policies allow correctional
officers to take the property of inmates without cause. Relatedly, renewing a
claim raised in his complaint, but not expressly addressed by the district court,
Schwarzer asserts that the primary issue in his case is a violation of
substantive due process.
      Under    the   Parratt/Hudson        doctrine,    the    deprivation    of   a
constitutionally protected property interest caused by a state actor’s random,
unauthorized conduct does not give rise to a § 1983 procedural due process
claim unless the state fails to provide an adequate post-deprivation remedy.
Zinermon v. Burch, 494 U.S. 113, 115 (1990); see Hudson v. Palmer, 468 U.S.
517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled in part
by Daniels v. Williams, 474 U.S. 327 (1986).           However, “postdeprivation
remedies,” such as state tort suits, “do not satisfy due process where a



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                                  No. 19-40019

deprivation of property is caused by conduct pursuant to established state
procedure, rather than random and unauthorized action.” Hudson, 468 U.S.
at 532. In such a case, a § 1983 claim is appropriate. See Augustine v. Doe,
740 F.2d 322, 329 (5th Cir. 1984). 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.
      Schwarzer alleged in his complaint that his Step 1 and Step 2 grievances
were denied based on a determination that the seizure of his property was
pursuant to policy. He attached the relevant grievance forms to his complaint,
and the responses to these grievances by prison officials support Schwarzer’s
factual allegations about the stated justification for denying his grievances.
      Because the factual allegations of the complaint and the grievance forms
indicate that the confiscation of Schwarzer’s property was not a random,
unauthorized act by a state employee, we conclude that the district court’s
dismissal as frivolous, pursuant to the Parratt/Hudson doctrine, of
Schwarzer’s claim based on the alleged confiscation of his property was an
abuse of discretion. See Allen v. Thomas, 388 F.3d 147, 148-49 (5th Cir. 2004);
Al-Ra’id v. Ingle, 69 F.3d 28, 32 n.2 (5th Cir. 1995). Therefore, we vacate that
portion of the district court’s order dismissing Schwarzer’s claim based on the
deprivation of property and remand for further proceedings. See Allen, 388
F.3d at 149. We express no opinion as to the merits of any such claim.
      Otherwise, we affirm the district court’s judgment. Schwarzer’s claim
based on the denial of a meaningful prison grievance system was properly
dismissed, as a prisoner “does not have a federally protected liberty interest in
having . . . grievances resolved to his satisfaction.” Geiger v. Jowers, 404 F.3d
371, 374 (5th Cir. 2005).      Further, Schwarzer cannot demonstrate that



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                                No. 19-40019

prisoners have a constitutional right to a grievance system. See Sandin v.
Conner, 515 U.S. 472, 484 (1995); Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir.
1995). To the extent that Schwarzer raised a claim based on the failure to
follow prison regulations, the claim was properly dismissed, as mere violations
of prison rules or regulations do not alone rise to the level of constitutional
violations and, therefore, such claims are not actionable under § 1983. See
Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986).
      Finally, Schwarzer has not challenged the denial of his request for class
certification. The issue is therefore deemed abandoned. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993).
      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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