Walker v. Richards ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50985
Summary Calendar
ROBERT RUSSELL WALKER,
Plaintiff-Appellant,
versus
ED RICHARDS, Sheriff, in His Official
and Individual Capacities,
Defendant-Appellee.
ROBERT RUSSELL WALKER,
Plaintiff-Appellant,
versus
ED RICHARDS, Sheriff, et al.
Defendants,
ED RICHARDS, Sheriff; ROBERT PHILLIPS;
JOHN DOE 11-13, 16-18; WILLIAM BOUSQUET,
Jail Administrator; ROBERT WEBSTER;
CLAYTON KLEEN,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. A-97-CV-363-SS & A-97-CV-576-SS
--------------------
November 21, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
No. 99-50985
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PER CURIAM:*
Robert Russell Walker, Texas prisoner #841009, appeals the
dismissal of two civil rights complaints, which were consolidated
by the district court.
Walker argues that the district court erred in dismissing
his complaint as to Defendants James and Patricia Cooper and John
Does 1 and 2. He argues that those defendants interfered with
his business and with his right to raise his child as he saw fit.
As Walker did not raise these claims in the district court, there
could be no error in the district court’s failure to consider
them. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342
(5th Cir. 1999), cert. denied, 120 S. Ct. 982 (2000).
Walker argues that the district court erred in dismissing
his complaint as to Melinda Bozarth and John Does 3 and 4. By
failing to address the basis for the district court’s dismissal
of those parties, Walker has abandoned any argument that the
district court erred in doing so. See Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993).
Walker argues that the district court erred in dismissing
claims pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). His
primary argument is that his claims involving interference with
his business and his family life were not barred by Heck.
However, Walker did not fairly raise those claims in the district
court, and the court did not apply Heck to any such claims.
*
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that this opinion should not be published and is not precedent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. 99-50985
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Despite his arguments on appeal, Walker also did not make any
facial challenge to Texas parole procedures in the district
court. See Leverette, 183 F.3d at 342. We reject Walker’s
argument that Heck is inapplicable to parole-revocation
proceedings. See Littles v. Board of Pardons & Paroles Div., 68
F.3d 122, 123 (5th Cir. 1995).1
Walker argues that the district abused its discretion in
failing to allow him to amend his complaint to state an Americans
with Disabilities Act (ADA) claim. Having reviewed the record,
and especially Walker’s repeated disregard for the timetables
established by the district court for amendments, we conclude
that no abuse of discretion occurred. See Addington v. Farmer’s
Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. Unit A July
1981).2
Walker argues that the district court erred in dismissing
his excessive-force claim against Appellees William Bousquet and
Robert Webster. We agree with Walker that the district court
erred in holding that he had waived the claim. The statement he
made in the course of litigating the first of his two complaints
did not apply to claims made in the second of his complaints.
However, we may affirm the district court’s grant of summary
1
As Appellee Phillips argues, Walker has not challenged the
district court’s dismissal of his claim against Phillips on the
basis of Heck. Accordingly, Walker has abandoned any such
argument. See Yohey, 985 F.2d at 225.
2
Walker contends that the district court erred in
dismissing the defendants in their official capacities pursuant
to the Eleventh Amendment because an ADA claim would not have
been so barred. Because Walker has shown no error in the
district court’s failure to permit an ADA claim, this issue is
moot.
No. 99-50985
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judgment if there exists another adequate basis for doing so.
Rodrigue v. Western & S. Life Ins. Co., 948 F.2d 969, 971 (5th
Cir. 1991). Such a basis exists here. Because Walker alleged no
personal participation by Bousquet and Walker in the use of
force, they were entitled to summary judgment. See, e.g., Murphy
v. Kellar, 950 F.2d 290, 292 n.7 (5th Cir. 1992). We also agree
with Appellees that Walker did not meet his burden of pointing to
evidence of a genuine issue as to this issue. See Fraire v. City
of Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992).
Walker argues that the district court erred in granting the
defendants summary judgment as to his retaliation and access-to-
the-courts claims. Having reviewed the summary-judgment evidence
closely, we conclude that Walker pointed to nothing from which a
retaliatory intent by the defendants could plausibly be inferred.
See Brady v. Houston Indep. Sch. Dist., 113 F.3d 1419, 1424 (5th
Cir. 1997). Walker’s access claim was properly dismissed because
he alleged no actual prejudice by the defendants’ conduct in
areas which are protected by the right of access. See Chriceol
v. Phillips, 169 F.3d 313, 317 (5th Cir. 1999); Johnson v.
Rodriguez, 110 F.3d 299, 310-11 (5th Cir. 1997).
Walker’s final argument is, again, that the district court
abused its discretion in failing to permit him to amend or
supplement his complaint. We have already rejected the argument
that the district court abused its discretion in declining to
give Walker yet another opportunity to add an ADA claim. Nothing
in Walker’s final argument convinces us that the district court
No. 99-50985
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otherwise abused its discretion in refusing him additional
chances to amend.
AFFIRMED.