Hines v. Helms , 78 F. App'x 360 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 17, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-10788
Summary Calendar
JOHN J. HINES,
Plaintiff-Appellant,
versus
ROBERT HELMS and
H.M.R. PROPERTIES,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:03-CV-103
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
John J. Hines, a prisoner proceeding pro se, appeals the
district court’s dismissal of his civil rights complaint as
frivolous and failing to state a claim on which relief can be
granted. Hines also appeals the district court’s refusal to accept
and review his amended complaint. Hines sued Robert Helms and
H.M.R. Properties pursuant to 42 U.S.C. § 1983. He alleged that
*
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this opinion should not be published and is not precedent except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.
Helms, his landlord, invaded his privacy by allowing the police to
enter his residence and take his property. He also alleged that
H.M.R. Properties, his employer, denied him back pay and the cost
of a broken tooth. The district court dismissed the complaint with
prejudice because Helms and H.M.R. Properties are not state actors
as required by § 1983. The district court denied Hines’s motion to
amend the complaint, which would have added a state detective as a
defendant. For the following reasons, we AFFIRM.
A district court must dismiss a prisoner’s claim if it is
malicious, frivolous, or fails to state a claim on which relief can
be granted.1 A complaint is frivolous if it lacks an arguable
basis either in law or fact.2 A district court’s dismissal of a
complaint as frivolous is reviewed for an abuse of discretion,3 and
a district court’s dismissal of a complaint for failing to state a
claim is reviewed de novo.4
The judge did not err by dismissing Hines’s original complaint
as frivolous and failing to state a claim. Any action brought
pursuant to § 1983 requires the plaintiff to show a federal-rights
deprivation by a state actor. Hines’s original complaint made no
1
28 U.S.C. § 1915(e)(2)(B)(i)-(ii) (1994).
2
Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998).
3
Id.4
Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
2
allegation of state action. Reviewing this dismissal under either
standard of review, the district court did not err.
A party may amend its pleading “once as a matter of course at
any time before a responsive pleading is served.”5 Plaintiff moved
to amend before being served with a responsive pleading. The judge
denied Plaintiff’s Motion to Amend.6 We affirm because any error
that resulted was harmless.7 Plaintiff’s proposed amended
complaint makes only a conclusory allegation of conspiracy between
the defendants and a state actor; it provides no factual basis for
the allegation. This bare allegation of conspiracy does not
suffice to state a claim pursuant to § 1983.8 Accordingly, the
district court’s refusal to accept Plaintiff’s amended pleading was
harmless.
AFFIRMED.
5
FED. R. CIV. P. 15(a).
6
Id.; see Willis v. Collins, 989 F.2d 187, 189 (5th Cir. 1993)
(noting that a party may amend as of right at any time before being
served with a responsive pleading).
7
See Bazrowx v. Scott, 136 F.3d 1053, 1054-55 (5th Cir. 1998)
(affirming a district court’s dismissal of a pro se plaintiff’s
complaint because any error was harmless).
8
Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986);
Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982) (holding
that “mere conclusory allegations of conspiracy cannot, absent
reference to material facts” state a claim of conspiracy).
3