Houser v. Wathen , 80 F. App'x 363 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 12, 2003
Charles R. Fulbruge III
Clerk
No. 03-10235
Summary Calendar
BRUCE WAYNE HOUSER,
Plaintiff-Appellant,
versus
RICHARD E. WATHEN; WILLIAM L. BOND; JOSEPH C. BOYLE;
HOWARD W. ISAACS; CATHERINE M. MILLORENES;
DOUGLAS J. WILKINSON; SUSAN SCHUMACHER,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
(7:01-CV-222-R)
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Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Bruce Wayne Houser, Texas prisoner number
460890, appeals the district court’s dismissal of his civil rights
suit as frivolous in accordance with 28 U.S.C. § 1915A(b)(1).
Houser argues that the district court erred in determining that his
claims were frivolous and in dismissing his suit without giving him
notice that it intended to do so. We review such dismissals for
*
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this opinion should not be published and is not precedent except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.
abuse of discretion. See Martin v. Scott, 156 F.3d 578, 580 (5th
Cir. 1998).
Houser contends that the district court erred in dismissing
his conspiracy claim. Houser did not, however, allege that the
purported conspiracy against him was motivated by improper bias, or
that he was a member of a protected class. See Holdiness v.
Stroud, 808 F.2d 417, 424 (5th Cir. 1987). Even if he had made
such an allegation, his conclusional assertions would be
insufficient to set forth a viable claim. See Brinkmann v.
Johnston, 793 F.2d 111, 113 (5th Cir. 1986). Houser has not shown
that the district court abused its discretion in determining that
this claim was frivolous.
Houser likewise has not shown that the district court abused
its discretion in dismissing his claim of denial of access to
courts on the ground that he did not allege that he suffered any
specific prejudice as a result of the defendants’ alleged improper
acts. See Lewis v. Casey, 518 U.S. 343, 349-51 (1996); Henthorn v.
Swinson, 955 F.2d 351, 354 (5th Cir. 1992). Houser has waived the
issue whether the district court erred in determining that his
retaliation claim was untimely by failing to brief it. See Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
The district court properly determined that Houser was
required to show that his disciplinary convictions had been
overturned before he challenged both the convictions and the
resulting punishments in a civil rights action. See Edwards v.
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Balisok, 520 U.S. 641, 646-48 (1997). To the extent that Houser is
attempting to raise an Eighth Amendment claim for the first time in
this appeal, we decline to consider it. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). Houser
has not shown that the district court abused its discretion in
dismissing his claims challenging his disciplinary convictions and
the resulting punishments. Because Houser has not briefed the
issue whether the district court erred in determining that his
claim related to the disciplinary charge that did not result in
conviction was time-barred, this issue is waived. See Yohey, 985
F.2d at 224-25.
Houser has not shown that the district court abused its
discretion in dismissing his claim that the defendants improperly
seized his personal property. Texas law provides an adequate
remedy for claims of wrongful deprivation of property, so that
claim is not cognizable in this action. See Parratt v. Taylor, 451
U.S. 527, 541-44 (1981), overruled in part not relevant here,
Daniels v. Williams, 474 U.S. 327 (1986); Hudson v. Palmer, 468
U.S. 517, 533 (1984); Cathey v. Guenther, 47 F.3d 162, 164 (5th
Cir. 1995).
Finally, Houser has not shown that the district court abused
its discretion in dismissing his myriad other claims. Accordingly,
the judgment of the district court is AFFIRMED.
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