IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-20285
Summary Calendar
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GARY MONROE,
Plaintiff-Appellant,
versus
WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION; NEVA YARBROUGH; JOHN DOE,
Defendants-Appellees.
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Appeal from the United States District Court for
the Southern District of Texas
(H-94-CV-2974)
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August 14, 1998
Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Appellant Gary Monroe brought this civil rights suit under
42 U.S.C. § 1983, alleging that his tennis shoes and legal papers
were lost while he was in solitary confinement. He sued Wayne
Scott, the Director of the Texas Department of Criminal Justice,
Institutional Division, Neva Yarbrough, the warden of the prison,
and a John Doe defendant who is alleged to be the property
*
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this opinion should not be published and is not precedent except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.
officer of the prison. We affirm, essentially for the reasons
set forth in the district court’s order partially granting
defendants’ motion to dismiss, and the magistrate’s memorandum
recommending that summary judgment be granted.
Insofar as Monroe claims that the defendants’ actions
resulted in an unconstitutional deprivation of property (the
shoes and legal papers), the claim is barred by the
Parratt/Hudson doctrine. See Parratt v. Taylor, 451 U.S. 527
(1981) and Hudson v. Palmer, 468 U.S. 517 (1984). Under this
doctrine, deprivations of property caused by the misconduct of
state officials do not infringe constitutional due process
provided that adequate state post-deprivation remedies exist.
Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994). There is no
remedy under § 1983 if the state tort remedy of conversion was
available to the inmate, and Texas has such a remedy. Id. at
543-44; see also Marshall v. Norwood, 741 F.2d 761, 764 (5th
Cir. 1984). The burden is on the complainant to show that the
state’s post-deprivation remedy is not adequate. Id. Monroe
made no such showing.
This leaves the issue of whether the defendants’ actions
unconstitutionally deprived Monroe of access to the courts.
First, we note that the defendants Scott and Yarbrough offered
competent summary judgment evidence that they were not personally
involved in the deprivation of Monroe’s property. They cannot be
held vicariously liable under § 1983 as supervisory officials.
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Doe v. Taylor Indep. School Dist., 15 F.3d 443, 452 (5th Cir.
1994) (en banc).
To the extent that Scott and Yarbrough were sued in their
official capacities, Monroe’s claim for money damages is barred
by the Eleventh Amendment. Except where the plaintiff seeks
prospective injunctive relief, § 1983 suits against a State, or
such suits brought nominally against state officials where the
state is the real party in interest, are barred by the Eleventh
Amendment. Pennhurst State School & Hospital v. Halderman, 465
U.S. 89, 101-02 (1984); Quern v. Jordan, 440 U.S. 332, 340-41
(1979). Further, neither States nor state officials sued in
their official capacities are “persons” subject to liability
under § 1983. Will v. Michigan Dep’t of State Police, 491 U.S.
58, 71 (1989).
Insofar that Monroe alleged that defendants were negligent
in the handling of his legal papers, § 1983 liability does not
extend to conduct that is merely negligent. Daniels v. Williams,
474 U.S. 327, 328 (1986); Davidson v. Cannon, 474 U.S. 344, 347
(1986). Insofar as Monroe is complaining that denial of access
to the law library was occasioned by the solitary confinement
itself, limitations may be placed on library access so long as
they are “reasonably related to legitimate penological
interests.” Lewis v. Casey, 518 U.S. 343, 362 (1996). Monroe
makes no showing that the solitary confinement was improper.
Finally, we note that before a prisoner may prevail on a
claim that his constitutional right of access to the courts was
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violated, he must demonstrate “that his position as a litigant
was prejudiced by his denial of access to the courts.” Eason v.
Thaler, 73 F.3d, 1322, 1328 (1996). Monroe failed to offer
competent, verified summary judgment evidence that the loss of
his legal papers or lack of access to the law library prejudiced
him in another suit. At most, he offered conclusory allegations
of such prejudice that do not suffice to raise a genuine issue of
fact. “[C]onclusory allegations unsupported by concrete and
particular facts will not prevent an award of summary judgment.”
Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir.
1995).
AFFIRMED.
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