McGruder v. Will

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-20819
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KIMBERLE MCGRUDER,

Plaintiff - Cross-Appellee,

SHARON SCOTT; TONYA ODIONESENE; DAVIS ENAOHWO; MARLENE BURGESS;
MAUREEN ADAMS, also known as Maureen Gonzalas; LAVERNE CRUMP,
also known as Laverne Crump-Smith; MARION MILBURN; CONSUELA
HASKINS,

Plaintiffs - Appellants-Cross-Appellees,

v.

TOM WILL, Deputy Constable, In His Individual Capacity, Precinct
5; MARTIN SPEARS, Deputy Constable, In his Individual Capacity,
Precinct 5; GLEN CHEEK, Constable, In his Individual and Official
Capacities; JAMES L. DOUGLAS, Constable, In his Official
Capacity, Precinct 3; SECURITEESTOR INC, doing business as
Security Storage, doing business as King David Moving & Storage,

Defendants - Appellees,

MARC SEYMOUR,
Defendant - Appellee-Cross-Appellant.

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Appeals from the United States District Court
for the Southern District of Texas
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February 10, 2000
Before JOLLY, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Plaintiffs are a group of Texas tenants who challenged

deputies’ and a warehouseman’s refusal to return their personal

belongings during their evictions. They alleged causes of action

under 42 U.S.C. § 1983 and Texas law. The district court entered
summary judgment against plaintiffs, but denied defendant

Seymour’s motion for sanctions. Because we find that plaintiffs

did not sufficiently articulate a constitutional harm and had

adequate alternative remedies under state law, we affirm the

summary judgment. We also affirm the denial of sanctions.

I. Facts and Procedural History

Plaintiffs are tenants who each lost a residential forcible

detainer action in Texas courts and against whom writs of

possession issued.1 The legitimacy of those proceedings is not

1
A forcible detainer under Texas law is a kind of eviction
suit: it is an action at law that can be used by a landlord to
secure possession from a tenant in default of a lease agreement.
See TEX. PROP. CODE §§ 24.001, 24.002, and 24.004; Caro v. Housing
Auth. of City of Austin, 794 S.W.2d 901 (App. 3 Dist. 1990) (writ
denied). Jurisdiction over the action is in the justice courts,
See TEX. PROP. CODE § 24.004; Goggins v. Leo, 849 S.W.2d 373 (Tex.
App. Houston 14th Cir. 1993), with appeal to the county courts.
See Tex. R. Civ. P. 749. Appeal of the county court judgment may
be had where the premises in question are used for residential
purposes only. See TEX. PROP. CODE § 24.007.
A tenant/defendant in a forcible detainer action in justice
court is entitled to notice to vacate before the landlord may file
suit. See TEX. PROP. CODE § 24.005. Once filed, a forcible
detainer action is subject to the general rules of procedure in the
justice courts, including those requiring notice and service of
process. See Tex. R. Civ. P. 743; Criswell v. Southwestern
Fidelity Life Ins. Co., 373 S.W.2d 893 (Tex. Civ. App. Houston
1963). The parties are entitled to trial by jury upon demand and
payment of a fee, see Tex. R. Civ. P. 744, or, if no jury is
demanded, a bench trial. See Tex. R. Civ. P. 747. Upon judgment
or verdict in favor of the plaintiff, the landlord is entitled to
a writ of possession which cannot become final absent a possession
bond before six days after judgment has been rendered. See TEX.
PROP. CODE § 24.0061. Execution of the writ of possession is
contingent upon compliance with procedures contained in § 24.0061
including adequate posting of notice. In the instant case, all

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contested. Defendants Will, Spears, Cheek, and Douglas are

officials employed by Harris County, Texas. Defendant

Securiteestor, Inc., is a warehouseman and was hired to remove

the personal property of the plaintiffs. Defendant and cross-

appellant Seymour is the president and manager of Securiteestor.

Plaintiffs (other than Crump, who alleges that she was never

given an eviction notice) received eviction notices whose content

and method of posting complied with Texas law. As required by

TEX. PROP. CODE § 24.0062, the notices stated: “You, as the

tenant, may redeem any of the property, without payment of moving

or storage charges, on demand during the time the warehouseman is

removing the property from the premises and before the

warehouseman permanently leaves the premises.”

During their evictions, each plaintiff made a demand for

return of his property. No plaintiff was able to recover all of

his or her property once removal by the warehouseman had begun

and no plaintiff was allowed to remove property once it had been

placed in the warehouseman’s truck. Plaintiffs were allowed to

retain certain personal items and, if they had a present means of

storing the property such as a car or truck, were allowed to

remove other items.

Plaintiffs filed suit in district court, alleging violation

plaintiffs received adverse judgments in forcible detainer actions.
No appeals were taken and the writs of possession against them
became final.

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of 42 U.S.C. § 1983 and additional state law claims. Defendants

moved for summary judgment and Seymour moved for sanctions

against plaintiffs. The district court denied Seymour’s motion

and granted summary judgment, finding in part that TEX. PROP.

CODE § 24.0062 had not been violated, that adequate post-

deprivation remedies existed under state law, and that plaintiffs

did not make out a prima facie case on their state law claims.

The district court also offered its interpretation of TEX. PROP.

CODE § 24.0062, inferring that a tenant’s right to reclaim his

property during an eviction is limited to those situations in

which he has a present means of storing or removing the property.

Plaintiffs, other than McGruder, and Seymour appeal.

II. Analysis

We review a grant of summary judgment de novo, see F.D.I.C.

v. Abraham, 137 F.3d 264, 267 (5th Cir. 1998), including any

interpretation of state law contained in it. See Information

Communication Corp. v. Unisys Corp., 181 F.3d 629, 632 (5th Cir.

1999). We need not accept the district court’s rationale and may

affirm on any grounds supported by the record. See Howard v.

Fidelity & Deposit Co. of Maryland, 98 F.3d 852, 856 (5th Cir.

1996); Forsyth v. Barr, 19 F.3d 1527, 1534 n.12 (5th Cir. 1994).

There is no Texas precedent on proper procedures under TEX.

PROP. CODE § 24.0062 that appears relevant to plaintiffs’ claims.

We are therefore reluctant to issue a statement directing the
4
application of § 24.0062, particularly where the proper

resolution of the case does not require it. See Lawrence v.

Virginia Ins. Reciprocal, 979 F.2d 1053, 1055 (5th Cir. 1992).

Without endorsing the district court’s interpretation of §

24.0062, we find that summary judgment was proper in this case.

Plaintiffs do not contest that they received adequate due

process prior to the issuance of their eviction orders and had

ample notice that they would be evicted. Plaintiffs did not

articulate what process should have been due during their

evictions that was not available before or after, and only

alleged an abstracted interest in the right to demand certain

property during an eviction. The injury plaintiffs allege is not

constitutionally cognizable and therefore does not rise to the

level of a § 1983 violation. See Garcia v. Reeves County Texas,

32 F.3d 200, 202-03; Arnaud v. Odom, 870 F.2d 304, 309 (5th Cir.

1989). Plaintiffs’ § 1983 claims are barred because they had

adequate state law post-deprivation remedies available to them

both under the Texas Property Code (§ 24.0062 (i)) and in tort.

See Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994).

III. Conclusion

We find that plaintiffs failed to make out a § 1983 claim,

and agree with the district court’s conclusion that plaintiffs

failed to establish a prima facie case on their state law claims.

We affirm the grant of summary judgment. Because the district
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court does not appear to have abused its discretion in denying

Seymour’s motion for sanctions, see Childs v. State Farm Mut.

Auto Ins. Co., 29 F.3d 1018, 1023 (5th Cir. 1994), we also affirm

the denial of sanctions.

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