Sims v. Rowe ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50408
Summary Calendar
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KENNETH RAY SIMS,
Plaintiff-Appellant,
versus
BRIAN K. ROWE,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
(W-94-CV-357)
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(September 25, 1995)
Before JOLLY, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Texas state prisoner Kenneth Ray Sims filed a pro se, in
forma pauperis civil rights complaint, 42 U.S.C. § 1983, against
correctional officer Brian Rowe alleging that Rowe confiscated his
headphones and antenna during a routine search and that the
property has not been returned. On December 13, 1994, the district
court issued an order stating: “[i]n the instant case Plaintiff’s
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should not be published.
claims may support a state tort claim, however, they wholly fail to
rise to the level of a constitutional violation. This action
should therefore be dismissed pursuant to 28 U.S.C. § 1915(d) on
the grounds that it is legally frivolous.” Additionally, the
district court noted that Sims had been warned about filing
frivolous lawsuits and, therefore, ordered him to show cause why
the costs of the suit should not be taxed against him.
In response to the show cause order Sims filed objections
to the district court’s order in which he alleged that the
headphones and antenna were confiscated in retaliation for his
exercising his constitutional right to access to the courts. He
did not address the issue of whether costs should be taxed to him.
Without considering the allegations of retaliation, the district
court entered a final judgment dismissing the action as frivolous
and ordered Sims to pay $120 in costs. The district court also
ordered the clerk of the court not to accept new filings until Sims
has paid the sanction or received leave of court to file a
complaint. We affirm.
DISCUSSION
A complaint filed in forma pauperis can be dismissed by
the district court sua sponte if the complaint is frivolous. 28
U.S.C. § 1915(d); Cay v. Estelle, 789 F.2d 318, 323 (5th Cir.
1986), partially rev. on other grounds, Booker v. Koonce, 2 F.3d
114, 114-15 (5th Cir. 1993). A complaint is frivolous if it lacks
an arguable basis in law or fact. Ancar v. Sara Plasma, Inc., 964
2
F.2d 465, 468 (5th Cir. 1992). This court reviews the district
court's dismissal for an abuse of discretion. Id.The district court dismissed this action as legally
frivolous based on well established constitutional principles which
provide that an individual cannot state a cognizable due process
claim if a meaningful post-deprivation remedy is available to
address a property loss. Hudson v. Palmer, 468 U.S. 517, 533, 104
S. Ct. 3194, 3202-04 (1984). Texas provides an adequate post-
deprivation remedy, and, therefore, the district court did not
abuse its discretion in dismissing the action as legally frivolous.
Thompson v. Steele, 709 F.2d 381, 383 (5th Cir.), cert. denied, 464
U.S. 897 (1983).
Additionally, although a party is permitted to amend his
pleading once as a matter of right before a responsive pleading is
filed, FED. R. Civ. P. 15(a); McGruder v. Phelps, 608 F.2d 1023,
1025 (5th Cir. 1979), a plaintiff may not amend his complaint if
the district court has dismissed the action. Whitaker v. City of
Houston, 963 F.2d 831, 834-35 (5th Cir. 1992). In his objection to
the district court’s December 13 order, Sims failed to address the
court’s order to show cause concerning the imposition of costs, but
newly alleged that Rowe confiscated his property in retaliation for
exercising his right to access to the courts. This pleading could
have been construed as a motion to amend the complaint. Compare
Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir.
1972)(memorandum in opposition to motion for summary judgment
raising new allegations should have been construed as an amendment
3
to the complaint). However, since the district court had dismissed
the action there was no cause of action for Sims to amend,
Whitaker, 963 F.2d 834, and, therefore, the district court was not
required to consider the issues in the subsequent pleading.1
CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
1
To the extent Sims appeals the denial of injunctive relief, his quest
is vain in light of the dismissal.
4