Dreaglen Davis v. Texas Board of Corrections, et a

Case: 09-40756 Document: 00511074550 Page: 1 Date Filed: 04/08/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 8, 2010
No. 09-40756
Summary Calendar Lyle W. Cayce
Clerk
DREAGLEN SYLVESTER DAVIS,
Plaintiff-Appellant
v.
TEXAS BOARD OF CRIMINAL JUSTICE; TEXAS DEPARTMENT OF
CRIMINAL JUSTICE; BRAD LIVINGSTON,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:08-CV-237
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Dreaglen Sylvester Davis, Texas prisoner # 1271774, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint wherein Davis complained
that he was forced to work without compensation, he was subject to illegal strip
searches, and his property was illegally confiscated. The district court dismissed
Davis’s claim that he was forced to work without compensation and granted
summary judgment in favor of the defendants. Davis argues that he timely filed
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-40756 Document: 00511074550 Page: 2 Date Filed: 04/08/2010
No. 09-40756
objections to the magistrate judge’s report and recommendation. He contends
that the district court failed to conduct a de novo review because it improperly
found that objections were not timely filed.
Because Davis forwarded his written objections to prison officials within
ten days 1 of receiving the magistrate judge’s report, the objections were timely
filed. See Thompson v. Rasberry, 993 F.2d 513, 515 (5th Cir. 1993).
Consequently, Davis should have been afforded de novo review by the district
court, and our review on appeal is de novo. See 28 U.S.C. § 636(b)(1)(C);
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
The district court denied Davis’s F ED. R. C IV. P. 59(e) motion wherein
Davis complained that the court failed to address his objections to the
magistrate judge’s report. In denying the motion, the court found that Davis
failed to show the dismissal of his suit was erroneous and also denied all
outstanding motions. The district court’s denial of the Rule 59(e) motion
indicates that a de novo review was conducted. Thus, any error in failing to
consider Davis’s objections is harmless. See Smith v. Collins, 964 F.2d 483, 485
(5th Cir. 1992).
Davis does not renew any of the substantive claims raised in the district
court. By failing to brief any argument challenging the district court’s reasons
for dismissal, Davis has abandoned the only grounds for appeal. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas County
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
AFFIRMED.
1
The events in question took place prior to the amendments to 28 U.S.C. § 636 which
changed the relevant time period to fourteen days effective December 1, 2009.
2