Bennett v. LA Dept Pub Safety, et al

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30593
Conference Calendar
MARLON DEWAYNE BENNETT,
Plaintiff-Appellant,
versus
LOUISIANA DEPARTMENT OF PUBLIC
SAFETY AND CORRECTIONS; C.M.
LENSING; THOMAS HOOPER; LEON
LANOUX; UNKNOWN STANLEY, Sgt.,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 02-CV-369
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February 19, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Marlon Dewayne Bennett, Louisiana prisoner # 359848,
appeals from the district court’s dismissal of his 42 U.S.C.
§ 1983 civil rights complaint as frivolous, for failure to state a
claim, and for seeking monetary relief from an immune defendant.
28 U.S.C. § 1915(e)(2)(B)(i),(ii),(iii). Bennett also appeals the
district court’s denial of his motion to amend or alter the

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No. 02-30593
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judgment pursuant to FED. R. CIV. P. 59(e); however, he has failed
to brief the issue on appeal. Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). Bennett argues that the prison’s
confiscation of his jars of peanut butter and jelly constitutes
a violation of due process, cruel and unusual punishment, and a
taking of property without just compensation.
Bennett cannot raise a cognizable property deprivation claim
under 42 U.S.C. § 1983 because Louisiana provides an adequate
postdeprivation remedy for property loss claims. See Marshall
v. Norwood, 741 F.2d 761, 763-64 (5th Cir. 1984). Likewise,
Bennett cannot avail himself of the Due Process Clause on his
claim for just compensation as an adequate postdeprivation remedy
exists in state court. See id. at 764.
Bennett advances only a conclusional argument with respect
to his Eighth Amendment cruel and unusual punishment claim. See
Brinkmann v. Dallas County Deputy Sherriff Abner, 813 F.2d 744,
748 (5th Cir. 1987). Similarly, Bennett fails to allege specific
facts with respect to individual prison officials to raise a
successful 42 U.S.C. § 1983 cause of action. See Oliver
v. Scott, 276 F.3d 736, 741 (5th Cir. 2002). The district court
properly dismissed Bennett’s claims pursuant to 28 U.S.C.
§ 1915(e)(2)(i) and (ii). See Berry v. Brady, 192 F.3d 504, 507
(5th Cir. 1999) (affirming 28 U.S.C. § 1915(e)(2)(B) dismissal
on any basis supported by the record).

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No. 02-30593
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Bennett’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Accordingly, his appeal is DISMISSED. 5TH CIR. R. 42.2. The
district court’s dismissal of the present case and our dismissal
of this appeal count as two strikes against Bennett for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
388 (5th Cir. 1996). We caution Bennett 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).
DISMISS APPEAL AS FRIVOLOUS; THREE-STRIKES WARNING ISSUED.

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