IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10380
Conference Calendar
GERALD KING,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE -
INSTITUTIONAL DIVISION; WAYNE SCOTT, Director;
GARY JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE - INSTITUTIONAL DIVISION;
JAMES M. DUKE, Senior Warden; CRAIG RAINES,
Assistant Warden; GALELA WOFFORD, Property
Officer; MARK I’VES, Correctional Officer III;
SHERRY LEFEVRE, Correctional Officer III,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:99-CV-246-C
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Gerald King, a Texas prisoner (# 589458), appeals the
district court’s sua sponte dismissal of his 42 U.S.C. § 1983
civil rights action under 28 U.S.C. § 1915(e)(2)(B)(i) as
frivolous. In his complaint, King had asserted that the Texas
Department of Criminal Justice--Institutional Division and
several of its employees violated his constitutional rights in
*
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that this opinion should not be published and is not precedent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.
No. 02-10380
-2-
connection with the confiscation and destruction of his personal
property and legal materials on December 26, 1998. He alleged
that such actions were taken in retaliation for past legal
activities and that they abridged his First Amendment right of
access to the courts. King had elaborated on these allegations
during a hearing pursuant to Spears v. McCotter, 766 F.2d 179
(5th Cir. 1985).
On appeal, King sets forth new claims and theories of
recovery and makes new factual allegations. However, “[i]t is
a bedrock principle of appellate review that claims raised for
the first time on appeal will not be considered.” Stewart Glass
& Mirror, Inc. v. U.S. Auto Glass Discount Ctrs., Inc., 200 F.3d
307, 316-17 (5th Cir. 2000); see Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999).
To the extent that King continues to complain about the
confiscation and destruction of his personal property, a
postdeprivation tort cause of action in state law is sufficient
to satisfy the requirements of due process. Parratt v. Taylor,
451 U.S. 527, 541-44 (1981), overruled on other grounds, Daniels
v. Williams, 474 U.S. 327 (1986); Hudson v. Palmer, 468 U.S. 517,
533 (1984); see also Murphy v. Collins, 26 F.3d 541, 543 (5th
Cir. 1994). Texas has adequate postdeprivation remedies for the
confiscation of prisoner property, such as a tort action for
conversion. See Murphy, 26 F.3d at 543. King asserts that the
deprivation was undertaken in retaliation for his exercise of
First Amendments rights, but King has not made allegations
sufficient to set forth a “chronology of events from which
No. 02-10380
-3-
retaliation may be plausibly inferred.” See Woods v. Smith,
60 F.3d 1161, 1166 (5th Cir. 1995).
King has abandoned his claim that the deprivation and
destruction of legal materials violated his First Amendment right
of access to the courts. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993); FED. R. APP. P. 28(a)(9).
King’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, the appeal is DISMISSED. See 5TH CIR.
R. 42.2. The dismissal of his current complaint as frivolous and
this court’s dismissal of this appeal as frivolous both count
as “strikes” pursuant to 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). This court has
also affirmed the dismissal, as frivolous, of at least one of
King’s prior civil rights actions, which counts as a third
strike. See id.; King v. Kilgore, No. 96-40126 (5th Cir.
Sept. 9, 1996) (unpublished). Because King has accumulated at
least three strikes, he may not proceed in forma pauperis in any
civil action or appeal filed while he is incarcerated or detained
in any facility unless he is under imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED.