Ruiz v. United States , 160 F.3d 273 ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20950
WISTING FIERRO RUIZ,
Plaintiff-Appellant,
VERSUS
UNITED STATES OF AMERICA; MICHAEL N. MILBY; KENNETH M. HOYT, U.S.
District Judge; JANET RENO, U.S. Attorney General; KATHELEEN
HAWKS; WARDEN OF FEDERAL CORRECTIONAL INSTITUTE OAKDALE;
JOHN & JANE DOE, 1, 2, 3,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
November 20, 1998
Before REYNALDO G. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:
Wisting Fierro Ruiz, federal prisoner No. 59534-079, appeals
the district court’s dismissal of his complaint under 28 U.S.C. §
1915A. In his appellate brief, Ruiz challenges the dismissal of
his claims based on the prison officials’ failure to deliver to him
incoming mail notifying him of final judgments dismissing a 28
U.S.C. § 2255 motion and a FED. R. CIV. P. 41(e) motion for return
of property. Primarily due to Ruiz’s transfer to another prison
facility, he did not receive notice of the dismissals until after
the appellate deadlines had passed. Because of this lost
opportunity to appeal the dismissal of his underlying claims, Ruiz
then made claims in the district court for: (1) damages for the
loss of his jewelry under the Federal Tort Claims Act (“the FTCA”),
28 U.S.C. § 2674 and § 1346(a)(2); (2) damages for the failure to
receive his mail under the FTCA; (3) injunctive relief for the
breach of an implied contract to deliver his mail; and (4) a loss-
of-access-to-the courts claim under Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971), and under 28 U.S.C. § 1346(a)(2).
We are first confronted with the issue of which standard of
review to use when reviewing a trial court’s dismissal pursuant to
§ 1915A. As part of the screening process of prisoner complaints
under § 1915A, a trial court is directed to “dismiss the complaint,
or any portion of the complaint, if the complaint--(1) is
frivolous, malicious, or fails to state a claim upon which relief
may be granted . . .” We are currently aware of no authority in
this Circuit which has previously determined the proper standard to
review appeals dismissed pursuant to this section. Unlike § 1915,
§ 1915A applies regardless of whether the plaintiff has paid a
filing fee or is proceeding in forma pauperis (“IFP”), and also
does not distinguish between dismissals as frivolous and dismissals
for failure to state a claim.
An IFP complaint may be dismissed as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B)(i) if it has no arguable basis in law or in
fact. A dismissal under § 1915(e)(2)(B)(i) is reviewed for abuse
of discretion, see Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
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1997), while a dismissal under § 1915(e)(2)(B)(ii) for failure to
state a claim is reviewed under the same de novo standard as
dismissals under FED. R. CIV. P. 12(b)(6). See Black v. Warren, 134
F.3d 732, 733-34 (5th Cir. 1998). More closely analogous to §
1915A than § 1915(e) is 42 U.S.C. § 1997e(c), which directs the
district court to dismiss, on its own motion or the motion of a
party, “any action brought with respect to prison conditions under
section 1983 . . . or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility if the court is
satisfied that the action is frivolous, malicious, fails to state
a claim upon which relief can be granted, or seeks monetary relief
from a defendant who is immune from such relief.” 42 U.S.C. §
1997e(c)(1). This Court reviews de novo a dismissal under §
1997e(c). See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.
1998). Because the language of § 1915A tracks the language of §
1997e(c), we will therefore employ the same de novo standard to
review dismissals pursuant to § 1915A. Accord McGore v.
Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997); Atkinson v.
Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996).
Because issues not briefed on appeal are waived, see S.E.C. v.
Recile, 10 F.3d 1093, 1096 (5th Cir. 1993)(“We liberally construe
briefs in determining issues presented for review; however, issues
not raised at all are waived.”), we AFFIRM the lower court’s
dismissal of Ruiz’s claims for lost jewelry under the Federal Tort
Claims Act, 28 U.S.C. § 2674, and 28 U.S.C. § 1346(a)(2).
We also AFFIRM the district court’s dismissal of Ruiz’s FTCA
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claim for damages caused by his failure to receive his mail because
such actions are statutorily barred. See 28 U.S.C. § 2680(b)(“The
provisions of this chapter . . . shall not apply to [a]ny claim
arising out of the loss, miscarriage, or negligent transmission of
letters or postal matters.”); see also Sojourner T v. Edwards, 974
F.2d 27, 30 (5th Cir. 1992)(stating that this court may “affirm the
district court’s judgment on any grounds supported by the record”).
The district court properly dismissed Ruiz’s claims for
injunctive relief against Judge Hoyt and the other defendants
because Ruiz failed to “demonstrate either continuing harm or a
real and immediate threat of repeated injury in the future.”
Society of Separationists, Inc. v. Herman, 959 F.2d 1283, 1285 (5th
Cir. 1992).
As for Ruiz’s claims under either Bivens or 28 U.S.C. §
1346(a)(2) for loss of access to the courts, we also AFFIRM the
ruling of the district court. Ruiz did not receive the judgment
denying his § 2255 and Rule 41(e) motions in time to file a timely
appeal. However, because we agree with the trial court’s
characterization of Ruiz’s underlying claims as frivolous, Ruiz has
failed to prove that he suffered an actual injury from his lost
appeal. This Court in Jackson v. Procunier, 789 F.2d 307, 312 (5th
Cir. 1986), left open the question of whether even an intentional
denial of mail “would be a deprivation of a constitutional right if
it could be shown that no real prejudice resulted because the
appeal was purely frivolous.” While we decline to address whether
or not the acts of the defendants in this case were intentional, we
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believe that it can be shown that no real prejudice resulted
because Ruiz’s appeal was ultimately frivolous. Therefore, we hold
that without proving an actual injury, a prisoner cannot prevail on
an access-to-the-courts claim. Accord Lewis v. Casey, 116 S. Ct.
2174, 2179-81 (1996).
For the foregoing reasons, we AFFIRM.
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