Knod v. City of Seven Points, 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opinion should not be published and is not precedent except under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.
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41014
Summary Calendar
DANIEL LEE KNOD, SR.,
Plaintiff-Appellant,
VERSUS
CITY OF SEVEN POINTS; P FERRERA, Officer, Seven Points
Individually and in official capacity; R RENEAU, Officer,
Seven Points Individually and in official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:99-CV-324
July 12, 2000
Before SMITH, BARKSDALE and PARKER, Circuit Judges.
PER CURIAM:*
Daniel Lee Knod, Sr., Texas prisoner number 805621, appeals
pro se the dismissal of his 42 U.S.C. § 1983 (1994) complaint for

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failure to state a claim. We affirm.
FACTS AND PROCEDURAL HISTORY
Knod alleged that police officers of the City of Seven Points
interfered with his attempts to visit his children pursuant to a
valid custody order. In a civil rights complaint filed in June
1999, Knod named as defendants the City of Seven Point and police
officers P. Ferrera and R. Reneau whom he sued in their
“individual, official and municipal capacities.”
Knod’s complaint alleged that “on several occasions between 6-
12-97 and 9-29-97 [he] went to the home of Claude Anthony Bess . .
. to visit [Knod’s] children according to a court order.” The
Besses, who apparently had custody of the children, refused to
allow Knod to visit them and called the police. The officers
responded to the calls, ordered Knod to leave the Besses’ property,
and threatened to arrest him if failed to do so. Knod asserted
that he showed the officers court orders allowing him to visit the
children, but the officers refused to honor the court orders. Knod
claimed the defendants conspired to conceal his children, denied
him due process, intentionally interfered with his visitation
rights and intentionally inflicted of emotional injury. He
requested compensatory and punitive damages.
Without ordering service upon the defendants, the magistrate
judge issued a report and recommendation that the lawsuit be
dismissed as frivolous under 28 U.S.C. § 1915(d), without prejudice

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to refiling in state court, because Knod had failed to state a
claim on which relief could be granted. The magistrate judge held
that Knod’s remedy for any denial of his rights lay in the Texas
state courts and she detailed the provisions of Texas law providing
relief. Knod filed objections. The district court adopted the
report and recommendation and dismissed Knod’s suit for failure to
state a claim, but ordered that the dismissal of this case not be
counted as a strike for purposes of 28 U.S.C. § 1915(g).
DISCUSSION
We review a dismissal as frivolous for abuse of discretion and
dismissal for failure to state a claim de novo. See Black v.
Warren, 134 F.3d 732, 733 (5th Cir. 1998).
Liberally construing Knod’s pro se pleadings, we discern
Knod’s primary constitutional claim to be that he was denied
procedural due process because the defendants failed to comply with
court orders regarding visitation with his children. The Supreme
Court has held that a procedural due process claim lacks merit
where there exists an adequate state court remedy. See Parratt v.
Taylor, 451 U.S. 527 (1981). A Texas law remedy exits for the very
situation about which Knod complains. The Texas Family Code
expressly provides that persons who interfere with visitation may
be liable in damages and sets out the means by which a lawsuit may
be brought in state court. See TEX. FAM. CODE ANN. art. 42.001-
42.003 (Vernon 1996). Knod has failed to show that Texas state law

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remedies for interference with visitation are inadequate.
The district court also construed Knod’s complaint as
asserting a substantive due process claim. To succeed on a
substantive due process claim, a plaintiff must show that “‘the
behavior of the government officer is so egregious, so outrageous,
that it may fairly be said to shock the contemporary conscience.’”
Morris v. Dearborne, 181 F.3d 657, 668 (5th Cir. 1999), quoting
County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998).
Nothing in Knod’s pleadings suggests that the defendants used
excessive force or any other tactic that would shock the
contemporary conscience when they were called to mediate this
family dispute.
Based on the foregoing, we affirm the dismissal of Knod’s §
1983 action.
AFFIRMED.

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