Case: 13-31018 Document: 00512709262 Page: 1 Date Filed: 07/23/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-31018 July 23, 2014
Summary Calendar
Lyle W. Cayce
Clerk
WILLIE GROSS, JR.,
Plaintiff−Appellant,
versus
NEWELL NORMAND, Jefferson Parish Sheriff in His Official Capacity;
GARY COOK, Lieutenant, in His Individual Capacity and Official Capacity
as Lieutenant for Sheriff’s Office; H. SYLVE, Shift Sergeant; LOUIS ANCAR,
Deputy; T. KELLY, Deputy; C. EMMANUEL, Deputy; L. GRANDSART,
Deputy; A. FARRIS, Deputy; E. USSIN, Deputy; B. COHEN, Deputy; C.
SIMMONS, Deputy; K. CALCAGNO, Deputy; A. MATHERNE, Deputy; S.
JOHNSON, Deputy,
Defendants−Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:11-CV-446
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-31018 Document: 00512709262 Page: 2 Date Filed: 07/23/2014
No. 13-31018
Willie Gross, Jr., Louisiana prisoner #130126, filed a civil rights com-
plaint under 42 U.S.C. § 1983 against prison officials claiming that, while he
was a pre-trial detainee, the defendants violated several constitutional rights
when they wrongfully confiscated and discarded his property. The district
court issued a judgment pursuant to Federal Rule of Civil Procedure 54(b)
staying Gross’s due-process claims regarding the destruction of his legal
materials pending the conclusion of the related state criminal matter and
dismissing Gross’s remaining claims concerning access to courts, due process,
the Fourth Amendment, equal protection, and freedom of speech.
First, Gross challenges the district court’s decision to stay his due-
process claim relating to the confiscation and destruction of his legal materials.
The district court did not abuse its discretion; a court should stay proceedings
in a § 1983 case brought by a pretrial detainee until the related pending crim-
inal case is resolved. See Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995).
Next, Gross challenges the dismissal of his access-to-courts, due-process,
Fourth Amendment, equal-protection, and freedom-of-speech claims as frivo-
lous and/or for failure to state a claim. Because the district court dismissed
Gross’s § 1983 complaint as frivolous or for failure to state a claim under
28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this court’s review is de novo under
the same standard that is used to review a dismissal under Federal Rule of
Civil Procedure 12(b)(6). Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).
To survive a Rule 12(b)(6) motion to dismiss, the factual allegations of a
complaint must be sufficient to state a claim for relief that is plausible on its
face and to raise a right to relief above the speculative level. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007). A claim has facial plausibility where
the pleaded factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556
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U.S. 662, 678 (2009). The mere possibility of misconduct is not sufficient. Id.
at 679; Twombly, 550 U.S. at 555. For the reasons that follow, Gross’s claims
were properly dismissed.
The access-to-courts claim stems from the defendants’ confiscation and
destruction of the legal motions Gross was preparing in his state criminal case.
Gross does not dispute the district court’s determination that he was repre-
sented by counsel at that time. He could not file pro se motions while he was
represented. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984); United States
v. Daniels, 572 F.2d 535, 540 (5th Cir. 1978). Because he has not shown that
he was prejudiced by their destruction, he has not shown that his federal right
of access to the court was implicated.
The district court determined that the Parratt/Hudson doctrine 1 applied
to Gross’s due-process claim relating to the confiscation and destruction of his
non-legal materials and other personal property. On appeal, Gross challenges
the applicability of that doctrine, under which “a deprivation of a constitution-
ally protected property interest caused by a state employee’s random, unau-
thorized conduct does not give rise to a § 1983 procedural due process claim,
unless the State fails to provide an adequate postdeprivation remedy.” Ziner-
mon v. Burch, 494 U.S. 113, 115 (1990).
Gross’s allegations describing the defendants’ conduct depict conduct
that is “not the result of some established state procedure.” Taylor, 451 U.S.
at 541. Rather, the conduct alleged describes the state actors’ unforeseeable
failure to abide by procedure―the defendants’ arbitrary, unreasonable abuse
of power. Such allegations call for the application of the Parratt/Hudson doc-
trine, so the defendants’ “conduct does not give rise to a § 1983 procedural due
1Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v. Taylor, 451 U.S. 527, 541 (1981),
overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986).
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process claim, unless the State fails to provide an adequate post deprivation
remedy.” Burch, 494 U.S. at 115.
Louisiana provides an adequate tort postdeprivation remedy for proce-
dural due-process claims relating to negligent or intentional property loss
claims by inmates. See Marshall v. Norwood, 741 F.2d 761, 763-64 (5th Cir.
1984); LA. CIV. CODE ANN. art. 2315. Gross has not shown that the state’s
postdeprivation remedy for the loss of his property is inadequate. See Mar-
shall, 741 F.2d at 764; Halloway v. Walker, 784 F.2d 1287, 1293 (5th Cir. 1986).
Further, because an inmate does not have an expectation of privacy in his cell,
Gross is unable to make a claim of unreasonable search and seizure under the
Fourth Amendment. Marshall, 741 F.2d at 763-64; see also United States v.
Ward, 561 F.3d 414, 419 (5th Cir. 2009) (stating that “as a per se rule a prisoner
cannot invoke the Fourth amendment because society is not prepared to
recognize a prisoner’s expectation of privacy in his prison cell”).
Gross also contends that the district court erred in dismissing his equal
protection claim. To establish a claim under the Equal Protection Clause,
Gross “must allege and prove that he received treatment different from that
received by similarly situated individuals and that the unequal treatment
stemmed from a discriminatory intent.” Taylor v. Johnson, 257 F.3d 470, 473
(5th Cir. 2001). Gross does not allege that any of the defendants had a discrim-
inatory intent when they searched the pre-trial detainee area.
Gross’s conclusional allegations on his freedom-of-speech claim are
insufficient to state a constitutional claim or challenge the district court’s rul-
ing. See Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002). Additionally, by
failing to brief an argument challenging the basis of the dismissal of his
deliberate-indifference claims, Gross has abandoned any such challenge. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas
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Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Lastly, because
the district court properly dismissed the federal claims that might have sup-
ported supplemental jurisdiction, it did not abuse its discretion by declining to
exercise supplemental jurisdiction over any state-law claims. See Welch v.
Thompson, 20 F.3d 636, 644 (5th Cir. 1994); Noble v. White, 996 F.2d 797,
799−800 (5th Cir. 1993).
Gross’s appeal is without arguable merit and thus is frivolous, so it is
DISMISSED. See Howard v. King, 707 F.2d 215, 219−20 (5th Cir. 1983). See
5TH CIR. R. 42.2. The dismissal of this appeal as frivolous counts as a strike
under 28 U.S.C. § 1915(g), as does the district court’s dismissal of the com-
plaint. See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387−88 (5th Cir.
1996). Gross is warned that if he accumulates three strikes, he may not pro-
ceed in forma pauperis in any civil action or appeal filed while he is incarcer-
ated or detained in any facility unless he is under imminent danger of serious
physical injury. See § 1915(g). The defendants’ motion for leave to file an out-
of-time brief is GRANTED.
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