McFarland v. Utter

U.S. Court of Appeals for the Fifth Circuit February 16, 2001

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-11066 Conference Calendar

CHRIS MCFARLAND,

Plaintiff-Appellant,

versus

NFN UTTER, Correctional Officer III; NFN THOMPSON, Correctional Officer III; NFN BOYD, Correctional Officer III,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:00-CV-271 -------------------- February 14, 2001

Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Chris McFarland, Texas prisoner # 627844, appeals from the

district court’s sua sponte dismissal of his

42 U.S.C. § 1983

civil rights complaint as frivolous. McFarland alleged that the

defendants stole and/or failed to return his personal property,

consisting of a gold chain, gold cross, and watch. The district

court did not abuse its discretion in concluding that McFarland’s

claim for the deprivation of his personal property was frivolous.

See Harper v. Showers,

174 F.3d 716

, 718 & n.3 (5th Cir. 1999).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-11066 -2-

As Texas has an adequate postdeprivation remedy for confiscation

of prisoner property, McFarland may not raise this claim in a

42 U.S.C. § 1983

action. Cathey v. Guenther,

47 F.3d 162, 164

(5th

Cir. 1995); Murphy v. Collins,

26 F.3d 541, 543

(5th Cir. 1994).

McFarland’s appeal is without arguable merit and is

frivolous. See Howard v. King,

707 F.2d 215, 219-20

(5th Cir.

1983). Because the appeal is frivolous, it is DISMISSED. See

5th Cir. R. 42.2. McFarland’s motion seeking evidence related to

his

42 U.S.C. § 1983

claim is DENIED.

The dismissal of this appeal and the dismissal as frivolous

by the district court each count as a “strike” for purposes of

28 U.S.C. § 1915

(g). See Adepegba v. Hammons,

103 F.3d 383, 387-88

(5th Cir. 1996). McFarland, therefore, has two “strikes” under

28 U.S.C. § 1915

(g). We caution McFarland that once he

accumulates 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; MOTION DENIED; SANCTIONS WARNING ISSUED.

Reference

Status: Unpublished