Treece v. State of Louisiana ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 22, 2003
Charles R. Fulbruge III
Clerk
No. 02-30879
Summary Calendar
CHARLES TREECE,
Plaintiff-Appellant,
versus
STATE OF LOUISIANA, ET. AL.,
Defendants,
WARREN SPEARS, of the Clerk’s Office
for the Criminal District Court,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CV-1567-T
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Charles Treece, Louisiana prisoner # 349233, appeals the
district court’s grant of summary judgment in favor of Warren
Spears and the dismissal of his 42 U.S.C. § 1983 claim against
Spears, which alleged that Spears, the director of the property
room for the Orleans Parish Criminal District Court, violated his
procedural due process rights by releasing cash seized in
*
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that this opinion should not be published and is not precedent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. 02-30879
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connection with his arrest to a third party and by continuing to
retain the remainder of the property seized in connection with
his arrest. His claims under the remaining federal and state
statutes cited in his original and amended complaints and his
claims against the remaining defendants have been abandoned. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Treece argues that the district court failed to give him
notice of the requirements for a summary judgment before granting
Spears’ summary judgment motion. FED. R. CIV. P. 56(c) requires
that the adverse party have at least ten days to respond to the
summary judgment motion. See Martin v. Harrison County Jail, 975
F.2d 192, 193 (5th Cir. 1992). Treece had more than ten days to
respond to the motion for summary judgment, and he did so.
Treece’s arguments that the district court was biased and that
the district court erred in denying his motions for appointment
of counsel are likewise without merit. See Litkey v. United
States, 510 U.S. 540, 555-56 (1994); Nethery v. Collins, 993 F.2d
1154, 1157 (5th Cir. 1993); Ulmer v. Chancellor, 691 F.2d 209,
212 (5th Cir. 1982). In addition, we do not consider Treece’s
claim that the state judge who ordered the release of the seized
cash to a third party is liable because the judge was not named
as a defendant in the instant case.
This court reviews the grant of a motion for summary
judgment de novo. Guillory v. Domtar Indus., Inc., 95 F.3d 1320,
1326 (5th Cir. 1996). Treece’s argument that Spears was liable
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under 42 U.S.C. § 1983 in his official capacity is without merit
because he has failed to identity an official policy or custom
which caused the deprivation of a constitutional right. See
Monell v. Department of Social Servs. of City of New York, 436
U.S. 658, 694 (1978); see Bennett v. Pippin, 74 F.3d 578, 584
(5th Cir. 1996). He has also failed to argue to this court that
Spears was liable under 42 U.S.C. § 1983 in his individual
capacity, and, thus, this argument has been abandoned. See
Yohey, 985 F.2d at 224-25.
Even if the arguments in his brief are liberally construed
as raising a claim that Spears was liable in his individual
capacity, however, the claim has no merit. Treece argues that
the court order which allowed Spears to release the seized cash
to a third party is “bogus” because there was no legal authority
for the court to do this. This argument is without merit. See
La. R.S. 15:41; La. R.S. 33:2333. His argument that the release
of the cash required a forfeiture hearing is also without merit.
Id. Although Treece argues that the cash was not stolen and that
the cash represented proceeds from the sale of his home, this
does not show that he was denied procedural due process by
Spears.
Even if the cash was not stolen, it could be released only
upon motion contradictorily with Spears. See La. R.S.15:41(C).
Treece argues that, contrary to the district court’s finding and
Spears’ affidavit, he has requested his property from the state
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court, and this assertion is supported by the summary judgment
record. The record also indicates, however, that his requests to
the state court for the return of his property were denied. The
fact that Treece may disagree with the state court’s rulings does
not show that Spears has violated his procedural due process
rights by continuing to retain his property.
Accordingly, as Treece has failed to show that Spears was
liable under 42 U.S.C. § 1983 or any of the other federal or
state statutes cited in his original and amended complaints, the
district court’s grant of summary judgment is AFFIRMED. Treece’s
“Supplement to Motion for Default Judgment” is construed as a
motion to file a supplemental brief and is GRANTED. His motion
for oral argument is DENIED.
AFFIRMED; MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED; MOTION
FOR ORAL ARGUMENT DENIED.