Summary Calendar JOHN E. SIMMONS v. BETTY J. COX, Etc.

*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-5115
Summary Calendar
_____________________
JOHN E. SIMMONS,
Plaintiff-Appellant,
v.
BETTY J. COX, Etc., ET AL.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(93-CV-188)
_________________________________________________________________
(December 3, 1993)
Before KING, HIGGINBOTHAM and BARKSDALE, Circuit Judges.
PER CURIAM:*
I.
John E. Simmons, an inmate of the Texas Department of
Criminal Justice, Institutional Division, filed a pro se civil
rights action under 42 U.S.C. § 1983 in the United States
District Court for the Eastern District of Texas against Warden

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James Shaw and two prison guards. He also moved to proceed in
forma pauperis (IFP).
According to Simmons' complaint, in January 1993, Officer
Daniel Defore, a prison guard, was escorting him down a hallway
when Defore told him to put his hands behind his back while he
was walking. Simmons replied that there was no prison regulation
requiring him to do so. Lieutenant Betty J. Cox, another prison
guard, then approached Defore and Simmons and asked what was
going on. After being apprised of the dispute, Cox called
Simmons a "smartass" and told Defore to handcuff Simmons so that
they could "shakedown" Simmons' cell.
When Simmons was later returned to his cell, he found that
his "legal work" was scattered about the cell and that his radio
and headphones were on the floor "be[]nt and b[ro]ken." He also
noticed that his cup, deodorant, shampoo, mirror, toothpaste, and
green jacket had been confiscated. He received a written notice
of the confiscation two days later, and the confiscated property
was returned eight days later.
Simmons alleged in his complaint that his civil rights under
§ 1983 were violated because (1) Cox and Defore violated his
right to free speech by retaliating against him for telling
Defore that he was not obligated to walk down the hallway with
his hands behind his back; (2) Cox deprived him of his property
without due process of law; and (3) Warden Shaw failed to train
Cox and Defore properly. He sought monetary damages as relief.

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The district court referred Simmons' suit to a magistrate
pursuant to 28 U.S.C. §§ 636(b)(1), (3). After reviewing
Simmons' claims against Defore and Cox, the magistrate
recommended that no due process violation had occurred because
the guards' actions were unpredictable and unauthorized, pre-
seizure safeguards were impossible, and a post-deprivation remedy
existed. The magistrate also viewed Simmons' failure-to-train
claim against Warden Shaw as without merit because "Simmons
failed to show that he suffered a constitutionally cognizable
deprivation." Finally, the magistrate recommended that the
district court dismiss Simmons' suit without prejudice as
frivolous and deny his request to proceed IFP pursuant to 28
U.S.C. § 1915(d). Over Simmons' objections, the district court
adopted the magistrate's report. The Court dismissed Simmons'
suit without prejudice and denied him IFP status. Simmons then
moved this court to permit him to proceed IFP and filed a timely
notice of appeal.
II.
By denying IFP and dismissing Simmons' complaint as
frivolous at the same time, the district court created several
procedural problems. See Garner v. Robinson, No. 93-4209, at 2-3
(5th Cir. May 12, 1993) (unpublished opinion). First, IFP must
be granted before a complaint can be dismissed for frivolousness.
See 28 U.S.C. § 1915(d).

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Second, the district court denied Simmons' IFP motion on the
basis of the merits of his complaint. A district court should
initially grant IFP if the plaintiff's financial status warrants
it and then docket the case. Mitchell v. Sheriff Dept., Lubbock
County, Tex., 995 F.2d 60, 61 n.1 (5th Cir. 1993); Watson v.
Ault, 525 F.2d 886, 891 (5th Cir. 1976). Thus, the initial
determination to grant IFP should be based solely on the
plaintiff's economic status. Mitchell, 995 F.2d at 61 n.1; Cay
v. Estelle, 789 F.2d 318, 322 (5th Cir. 1986); Ault, 525 F.2d at
891. The district court may later dismiss the complaint under
§ 1915(d) if the court finds that the complaint is frivolous.
Mitchell, 995 F.2d at 61 n.1; see Ali v. Higgs, 892 F.2d 438, 440
(5th Cir. 1990). The district court may determine whether the
complaint is frivolous at any time, even before service of
process. Ali, 892 F.2d at 440; Cay, 789 F.2d at 324. If the
district court dismisses a complaint as frivolous, the court
should then certify that an appeal may not be taken IFP. 28
U.S.C. § 1915(a); Garner, No. 93-4209, at 3.
The district court's dual disposition of Simmons' motion to
proceed IFP and his complaint makes the procedural posture of the
proceeding before this court unclear. Simmons was denied IFP
status in the district court, but he still received a judgment
without paying fees. There was no certification from the
district court that Simmons may not appeal IFP, yet Simmons has
moved this court to so proceed. Simmons also filed a notice to
appeal the district court's final judgment dismissing his

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complaint without prejudice. In cutting through the procedural
morass thus created, we have determined that we should consider
all of Simmons' filings now before this court as a motion to
proceed IFP. See Fed. R. App. P. 24(a) ("A motion for leave so
to proceed [IFP] may be filed in the court of appeals within 30
days after service of notice of action of the district court,"
i.e., denial of motion to proceed IFP, certification of appeal
not being taken in good faith, or finding that the litigant is
otherwise not entitled to proceed IFP); Fed. R. App. P. 24(a)
advisory committee's note ("[Rule 24(a)] establishes a subsequent
motion in the court of appeals, rather than an appeal from the
order of denial or from the certification of lack of good faith,
as the proper procedure for calling in question the correctness
of the action of the district court.").
III.
To proceed on appeal IFP, a litigant must be economically
eligible, and his appeal must not be frivolous within the meaning
of § 1915(d). Jackson v. Dallas Police Dept., 811 F.2d 260, 261
(5th Cir. 1986). Once the litigant has submitted an affidavit
attesting to his indigence, thus establishing his financial
condition, our inquiry is limited to whether the litigant raises
any arguable legal points--any non-frivolous issues. Mitchell,
995 F.2d at 61; Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983).

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A complaint is "frivolous" within the meaning of § 1915(d)
if "it lacks an arguable basis in either law or fact." Neitzke
v. Williams, 490 U.S. 319, 325 (1989). A complaint is not
automatically legally frivolous in the context of § 1915(d)
because it fails to state a claim. Id. at 331. However, a
complaint is legally frivolous if the plaintiff alleges "claims
of infringement of a legal interest which clearly does not exist"
or "claims against which it is clear that the defendants are
immune from suit." Id. at 327.
IV.
Simmons asserts that the issues raised in his § 1983
complaint are not frivolous within the meaning of § 1915(d). We
examine each of the issues presented in Simmons' complaint in
turn.
A.
Simmons first asserts that Cox and Defore violated his First
Amendment right to free speech by searching his cell in
retaliation for his response to Defore's request that he keep his
hands behind his back while walking down the hallway. We believe
that this issue is legally frivolous.
An inmate enjoys no Fourth Amendment protection against
unreasonable searches in his prison cell. Hudson v. Palmer, 468
U.S. 517, 526 (1984). However, an inmate does retain "those
First Amendment rights of speech 'not inconsistent with [his]
status as . . . [a] prisoner or with the legitimate penological

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objectives of the corrections system.'" Id. at 523; Jackson v.
Cain, 864 F.2d 1235, 1248 (5th Cir. 1989).
In Jackson, this court reviewed a prisoner's First Amendment
retaliation claim. Jackson, 864 F.2d at 1248. Jackson, a
Louisiana prisoner, was transferred from one prison to another
and told that the state would pay to mail the clothes, which he
would no longer be permitted to wear at the new prison, to the
address of his choice. Id. at 1238. At the new prison, Jackson
was told that he had one day to pay the postage to mail these
clothes or they would be destroyed. Id. He then filled out the
prison-mandated form, and on the line entitled "witnessed by:" he
wrote, "'I feel that I am sound enough essentially to witness for
myself what belongs to me and what doesn't.'" Id. Jackson also
wrote to the warden, complaining that some of his clothing which
had been taken from him when he arrived at the new prison was not
listed on the form and was missing. Id. at 1238-39.
Jackson alleged that he was transferred to an undesirable
work assignment for his comment on the form and for his letter to
the warden and that a prison guard told him that officials would
rescind his "punishment" if he would stop writing letters. Id.
at 1239. The district court summarily dismissed Jackson's § 1983
action. Id. at 1238. On appeal, this court observed that
"filling out a prison-mandated form and complaining about
treatment by means of a private letter can be compatible with the
acceptable behavior of a prisoner and thus may not adversely
affect the discipline of the prison." Id. at 1248. We therefore

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recognized that Jackson had stated a cognizable First Amendment
claim.
We do not find Simmons' case to be analogous to Jackson's.
Simmons apparently disobeyed a guard's direct order rather than
comply with what he perceived to be injustice and seek redress
through written complaints, as had Jackson, or established
grievance procedure. Simmons' action--i.e., his statement to
Defore that he did not have to keep his hands behind his back
while walking down the hallway--is not "compatible with the
acceptable behavior of a prisoner" and can have an adverse affect
on prison discipline. See id.; cf. Turner v. Safley, 482 U.S.
78, 87 (1987) (explaining that the action of prison officials is
valid if such action is reasonably related to legitimate
penological interests, even though the action might inpinge on a
constitutional right). Therefore, because Simmons has claimed
infringement of a First Amendment interest which does not exist,
he raises an issue which is frivolous pursuant to § 1915(d).
B.
Simmons also asserts that Defore and Cox confiscated and
damaged his personal property in violation of his procedural due
process rights. We disagree.
Deprivation of an inmate's property by prison officials,
even when intentional, does not violate the inmate's procedural
due process rights as guaranteed by the Due Process Clause of the
Fourteenth Amendment provided that an adequate state post-
deprivation remedy exists. Hudson, 468 U.S. at 533; see Caine v.

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Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991) (en banc), cert.
denied, 112 S. Ct. 1474 (1992). Simmons has a right of action
under Texas law for any alleged negligent or intentional
deprivation of his property. See Thompson v. Steele, 709 F.2d
381, 383 (5th Cir.), cert. denied, 464 U.S. 897 (1983). Thus, he
has not stated a procedural due process claim, and this issue is
frivolous pursuant to § 1915(d).
C.
Simmons further argues that Warden James Shaw failed to
properly train the guards and thus violated Simmons' civil
rights. We find this argument without merit.
"Supervisory liability exists even without personal
participation in the offensive act if supervisory officials
implement a policy so deficient that the policy itself is a
repudiation of constitutional rights and is the moving force of
the constitutional violation." Thompkins v. Belt, 828 F.2d 298,
304 (5th Cir. 1987) (citations and quotations omitted). The
existence of a constitutionally deficient policy cannot be
inferred from a single wrongful act. Id.
Simmons does not allege that Warden Shaw was even aware of
Cox's and Defore's treatment of Simmons, i.e., the search of his
cell and the confiscation of his property. Moreover, the
existence of a constitutionally deficient policy cannot be
inferred from the one incident to which Simmons refers in his
complaint. Simmons' claim for supervisory liability against
Warden Shaw is therefore frivolous under § 1915(d).

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V.
For the foregoing reasons, we DENY Simmons' motion to
proceed IFP.

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