United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-10814
Summary Calendar
BENNIE L. COLLINS,
Plaintiff-Appellant,
versus
LUBBOCK POLICE DEPARTMENT,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:05-CV-124
Before GARWOOD, CLEMENT and PRADO, Circuit Judges.
PER CURIAM:*
Bennie L. Collins, Texas prisoner # 1316764, appeals the
dismissal of his 42 U.S.C. § 1983 suit as frivolous and for failure
to state a claim under 42 U.S.C. §§ 1915(e)(2)(B), 1915A. The
district court dismissed the complaint on the basis that, pursuant
to Parratt v. Taylor, 451 U.S. 527 (1981), and Hudson v. Palmer,
468 U.S. 517 (1984), a section 1983 claim may not be brought for
*
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opinion should not be published and is not precedent except under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.
the random and unauthorized confiscation of property by a state
actor if the state provides an adequate post-deprivation remedy.
However, in light of Davis v. Bayless, 70 F.3d 367, 375 (5th Cir.
1995), we are constrained to conclude that the district court
erred. Collins’s contention that his money (cash) was confiscated
when he was pulled over and arrested set forth, albeit obliquely
and inartfully, a Fourth Amendment substantive due process claim
rather than a procedural due process claim that would be barred by
Parratt/Hudson. See id. See also Augustine v. Doe, 740 F.2d 322,
325-37 (5th Cir. 1984).
We express no opinion on the ultimate merits of Collins’ claim
or whether there may be some other appropriate basis to dismiss
Collins’s suit under 42 U.S.C. §§ 1915(e) or 1915A.
VACATED and REMANDED.
2