United States Court of Appeals Fifth Circuit

FILED

December 3, 2020

Lyle W. Cayce Clerk

Mark Cliff Schwarzer,

Plaintiff—Appellant,

versus

Dale Wainwright, Chairman of the Board of Criminal Justice; Robert G. Beard, Jr., Former Warden of Stevenson Unit; Pamela R. Mendez-Banda, Unit Mailroom Employee; Bryan Collier, Executive Director, Texas Department of Criminal Justice; Jennifer Smith, DRC Program Supervisor,

Defendants—Appellees.

Appeal from the United States District Court for the Southern District of Texas

USDC No. 6:18-CV-34 (Judge Kenneth Hoyt)

Before Higginbotham, Jones, and Costa, Circuit Judges. Per Curiam:*

No. 19-41011

Mark Cliff Schwarzer, Texas prisoner # 1433741, appeals the dismissal of his 42 U.S.C. § 1983 complaint and the denial of his Federal Rule of Civil Procedure 59(e) motion to alter judgment.

However, the issues Schwarzer raises on appeal concern the dismissal of his § 1983 action rather than the denial of his Rule 59(e) motion.

As a threshold matter, this court “must examine the basis of its jurisdiction, on its own motion if necessary.” Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).

A timely notice of appeal in a civil case is a jurisdictional prerequisite. See Hamer v. Neighborhood Hous. Servs., 138 S. Ct. 13, 17 (2017).

Schwarzer’s Rule 59(e) motion was entered on the district court’s docket on November 4, 2019, which was after the October 30, 2019, deadline for filing the motion. See Fed. R. Civ. P. 59(e).

However, under the prison mailbox rule, Schwarzer’s Rule 59(e) motion is deemed filed on the date it was placed in the prison’s mail system. See Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009).

The motion was dated October 30, 2019, but the record does not reveal when Schwarzer deposited it in the mail.

It is therefore unclear whether his Rule 59(e) motion was timely filed.

As a result, on the present record, this court cannot determine whether it has jurisdiction to review the underlying dismissal of Schwarzer’s § 1983 complaint. See Fed. R. App. P. 4(a)(4)(A).

Accordingly, we hold the appeal in abeyance and remand for the limited purpose of determining when Schwarzer placed his Rule 59(e) motion in the prison mail system. See Thompson v. Montgomery, 853 F.2d 287, 288 (5th Cir. 1988).

APPEAL HELD IN ABEYANCE; LIMITED REMAND.

Schwarzer’s Earlier (First) Case and Appeal

Schwarzer v. Wainwright, CIVIL ACTION V-18-0029 (S.D. Tex. Dec. 6, 2018) [REVERSED]

Note: A Different case # 0029.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19-40019

Summary Calendar

FILED

June 25, 2020

Lyle W. Cayce Clerk

MARK CLIFF SCHWARZER,

Plaintiff-Appellant

v.

United States Court of Appeals Fifth Circuit

DALE WAINWRIGHT; LORIE DAVIS; KELVIN SCOTT; PATRICIA CHAPA; ROBERT G. BEARD, JR.; PAMELA C. BAROS; TRAVIS L. WHITE,

Defendants-Appellees

Appeal from the United States District Court for the Southern District of Texas

USDC No. 6:18-CV-29 (Judge Kenneth Hoyt)

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges. PER CURIAM:*

Mark Cliff Schwarzer, Texas prisoner # 1433741, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against several prison officials related to the confiscation of property by a correctional officer. He filed the suit as a purported class action on behalf of Texas Department of Criminal Justice

inmates. The district court dismissed the complaint as frivolous pursuant to 28 U.S.C. § 1915A, and it denied the request for class certification.

Schwarzer has moved to supplement the record with exhibits attached to his appellate brief. “An appellate court may not consider new evidence furnished for the first time on appeal and may not consider facts which were not before the district court at the time of the challenged ruling.” Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).

Accordingly, the motion is denied.

We review the dismissal as frivolous pursuant to § 1915A for abuse of discretion. See Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). A complaint is frivolous and lacks an arguable basis in law if it is based upon an indisputably meritless legal theory. See Neitzke v. Williams, 490 U.S. 319, 327 (1989).

Schwarzer first challenges the dismissal of his claim based on deprivation of property.

He contends that prison policies allow correctional officers to take the property of inmates without cause. Relatedly, renewing a claim raised in his complaint, but not expressly addressed by the district court, Schwarzer asserts that the primary issue in his case is a violation of substantive due process.

Under the Parratt/Hudson doctrine, the deprivation of a constitutionally protected property interest caused by a state actor’s random, unauthorized conduct does not give rise to a § 1983 procedural due process claim unless the state fails to provide an adequate post-deprivation remedy. Zinermon v. Burch, 494 U.S. 113, 115 (1990); see Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986).

However, “post deprivation remedies,”  such  as  state  tort  suits,  “do  not  satisfy  due  process  where  a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action.” Hudson, 468 U.S. at 532.

In such a case, a § 1983 claim is appropriate. See Augustine v. Doe, 740 F.2d 322, 329 (5th Cir. 1984).

Conduct is not “random and unauthorized” for purposes of the Parratt/Hudson doctrine if the state “delegated to [the defendants] the power and authority to effect the very deprivation complained of.” Zinermon, 494 U.S. at 138.

Schwarzer alleged in his complaint that his Step 1 and Step 2 grievances were denied based on a determination that the seizure of his property was pursuant to policy. He attached the relevant grievance forms to his complaint, and the responses to these grievances by prison officials support Schwarzer’s factual allegations about the stated justification for denying his grievances.

Because the factual allegations of the complaint and the grievance forms indicate that the confiscation of Schwarzer’s property was not a random, unauthorized act by a state employee, we conclude that the district court’s dismissal as  frivolous, pursuant to the Parratt/Hudson  doctrine, of Schwarzer’s claim based on the alleged confiscation of his property was an abuse of discretion. See Allen v. Thomas, 388 F.3d 147, 148-49 (5th Cir. 2004); Al-Ra’id v. Ingle, 69 F.3d 28, 32 n.2 (5th Cir. 1995).

Therefore, we vacate that portion of the district court’s order dismissing Schwarzer’s claim based on the deprivation of property and remand for further proceedings.  See Allen, 388 F.3d at 149. We express no opinion as to the merits of any such claim.

Otherwise, we affirm the district court’s judgment.

Schwarzer’s claim based on the denial of a meaningful prison grievance system was properly dismissed, as a prisoner “does not have a federally protected liberty interest in having . . . grievances resolved to his satisfaction.” Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005).

Further, Schwarzer cannot demonstrate that prisoners have a constitutional right to a grievance system. See Sandin v. Conner, 515 U.S. 472, 484 (1995); Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995).

To the extent that Schwarzer raised a claim based on the failure to follow prison regulations, the claim was properly dismissed, as mere violations of prison rules or regulations do not alone rise to the level of constitutional violations and, therefore, such claims are not actionable under § 1983. See Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986).

Finally, Schwarzer has not challenged the denial of his request for class certification. The issue is therefore deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Victoria)
CIVIL DOCKET FOR CASE #: 6:18-cv-00034

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