     Case: 15-10455      Document: 00513204898         Page: 1    Date Filed: 09/23/2015




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

                                      No. 15-10455                               FILED
                                                                         September 23, 2015
                                                                            Lyle W. Cayce
JOSE SURIA,                                                                      Clerk

                                                 Plaintiff-Appellant

v.

RICHARD WATHEN, Warden, James V. Allred Unit; POLANCO BLANCO,
Correctional Officer II, James V. Allred Unit; CHRIS OROURKM, Correctional
Officer IV, James V. Allred Unit,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 7:15-CV-77


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Jose Suria, Texas prisoner # 1297062, moves for leave to proceed in
forma pauperis (IFP) to appeal the dismissal as frivolous of his 42 U.S.C. § 1983
lawsuit. By moving to proceed IFP, Suria is challenging the district court’s
certification that the appeal is not taken in good faith. Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). This court’s inquiry “is limited to whether the
appeal involves legal points arguable on their merits (and therefore not



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10455      Document: 00513204898      Page: 2   Date Filed: 09/23/2015


                                  No. 15-10455

frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). In addition,
when the trial court’s certification decision is inextricably intertwined with the
merits of the case, this court may dispose of the appeal on the merits. Baugh,
117 F.3d at 202 n.24.
      Suria renews his claim for damages for his lost personal property,
asserting that the loss was the result of gross negligence and dereliction of
official duty on the part of correctional officers. However, as the district court
correctly determined, negligent conduct is not actionable under § 1983. See
Marsh v. Jones, 53 F.3d 707, 711-12 (5th Cir. 1995). Even affording his brief
liberal construction, Suria does not assert that his allegations established more
than negligence.     Alternatively, assuming that his allegations sufficiently
stated a claim for an intentional deprivation of property, the district court
correctly dismissed his complaint under the Parratt/Hudson doctrine because
Suria had an adequate postdeprivation remedy, to wit: a state court lawsuit
for conversion. See Allen v. Thomas, 388 F.3d 147, 149 (5th Cir. 2004); Murphy
v. Collins, 26 F.3d 541, 543-44 (5th Cir. 1984).
      Thus, Suria has not shown that his appeal involves a nonfrivolous issue.
See Howard, 707 F.2d at 220. Because the appeal is frivolous, it is dismissed.
See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202. Both the district court’s dismissal
and the instant dismissal count as strikes for purposes of 28 U.S.C. § 1915(g).
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996); see also Coleman v.
Tollefson, 135 S. Ct. 1759, 1763-64 (2015).        Suria is cautioned that if he
accumulates three strikes, he will no longer be allowed to proceed IFP in any
civil action or appeal filed while he is detained in any facility unless he is in
imminent danger of serious physical injury. See § 1915(g).
      IFP    MOTION       DENIED;     APPEALS        DISMISSED;        SANCTION
WARNING ISSUED.



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