Case: 14-41185 Document: 00513360165 Page: 1 Date Filed: 01/28/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-41185 FILED
January 28, 2016
GEORGE JONES,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
JOSE CORTEZ; YOLANDA CHAVEZ,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CV-608
Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
George Jones, Texas prisoner # 1436799, filed a 42 U.S.C. § 1983
complaint against Property Officer Jose Cortez and Unit Grievance Officer
Yolanda Chavez, both employed by the Texas Department of Criminal Justice
prison in Edinburg, Texas. Jones alleged that Cortez refused to forward and
subsequently destroyed his personal property following his transfer from
Edinburg to the Jordan Unit in Pampa, Texas. He alleged that Cortez
destroyed his property without a hearing or notification, in violation of his
property interests rights. Jones contended that Chavez refused to process his
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-41185 Document: 00513360165 Page: 2 Date Filed: 01/28/2016
No. 14-41185
grievances complaining of his loss of his property, in violation of Texas
Government Code § 501.007 and the Due Process Clause. The district court
dismissed Jones’s complaint as frivolous and for failure to state a claim and
denied Jones’s motion for leave to proceed in forma pauperis (IFP), certifying
that his appeal was not taken in good faith.
Now, Jones moves this court for authorization to proceed IFP. Jones’s
motion is construed as a challenge to the district court’s certification decision.
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into whether
the appeal is taken in good faith “is limited to whether the appeal involves
legal points arguable on their merits (and therefore not frivolous).” Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation
omitted). If we uphold the district court’s certification decision, Jones must
pay the appellate filing fee or the appeal will be dismissed for want of
prosecution. See Baugh, 117 F.3d at 202. However, if the appeal is frivolous,
we may dismiss it sua sponte under Fifth Circuit Rule 42.2. Id. at 202 n.24.
Jones does not address the basis of the district court’s dismissal of his
claim against Chavez. Accordingly, he has abandoned any challenge to
dismissal of that claim on appeal. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Hughes v. Johnson, 191 F.3d
607, 613 (5th Cir. 1999).
With regard to his claim against Cortez, as correctly determined by the
district court, the intentional, unauthorized deprivation of property caused by
state officials does not infringe constitutional due process rights of a prisoner
provided that adequate state post-deprivation remedies exist. See Zinermon v.
Burch, 494 U.S. 113, 115 (1990). Such post-deprivation remedies exist in
Texas. See Murphy v. Collins, 26 F.3d 541, 543-44 (5th Cir. 1994; TEX. GOV’T
CODE § 501.007. Jones has failed to meet his burden of showing that such post-
2
Case: 14-41185 Document: 00513360165 Page: 3 Date Filed: 01/28/2016
No. 14-41185
deprivation remedies were inadequate in his case. See Marshall v. Norwood,
741 F.2d 761, 764 (5th Cir. 1984).
Jones argues that the district court erred in failing to construe his pro se
complaint liberally, impermissibly held him to the same standards as a
formally trained lawyer, failed to accept his factual allegations as true, and
failed to draw all reasonable inferences in his favor. Jones’s assertions are
belied by the record. Nor did the district court abuse its discretion in failing to
appoint counsel. See Castro Romero v. Becken, 256 F.3d 349, 354 (5th Cir.
2001). Jones failed to show exceptional circumstances warranting the
appointment of counsel. See Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir.
1989).
In sum, Jones has not shown that the district court erred in certifying
that his appeal was not taken in good faith, and his IFP motion is denied. See
Baugh, 117 F.3d at 202. The instant appeal is without arguable merit and is
dismissed as frivolous. See id. at 202 n.24; Howard, 707 F.2d at 219-20; 5TH
CIR. R. 42.2. The dismissal of Jones’s complaint by the district court as
frivolous and for failure to state a claim, and the dismissal of his appeal as
frivolous each count as a strike pursuant to 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Jones garnered a prior
strike in Jones v Presas, No. 7:10-cv-061 (S.D. Tex. March 29, 2011).
Accordingly, he has three strikes and is now barred under § 1915(g) from
proceeding IFP 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 § 1915(g).
APPEAL DISMISSED; MOTION FOR LEAVE TO PROCEED IFP
DENIED; 28 U.S.C. § 1915(g) BAR IMPOSED.
3