Cooper v. USA

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21126
Summary Calendar
JAMES OSCAR COOPER
Plaintiff - Appellant
v.
UNITED STATES OF AMERICA; KEVIN BLAIR, Drug Enforcement
Administration Agent; STEPHEN S MORRIS, US Attorney; HOUSTON
POLICE DEPARTMENT; HARRIS COUNTY SHERIFF’S DEPARTMENT; DRUG
ENFORCEMENT AGENCY; US MARSHAL SERVICE; THE CITY OF
HOUSTON; THE COUNTY OF HARRIS,
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CV-2823
--------------------
June 7, 2002
Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
James Oscar Cooper, federal prisoner #55036-079, appeals the
district court’s dismissal pursuant to FED. R. CIV. P. 12(b)(6)
and 28 U.S.C. § 1915A of his civil action. Cooper asserts that
the district court misapplied 28 U.S.C. § 1915A; that the
district court erred in dismissing his claim under the Federal
*
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that this opinion should not be published and is not precedent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.
No. 01-21126
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Tort Claims Act (FTCA) for failure to exhaust administrative
remedies; that Heck v. Humphrey, 512 U.S. 477 (1994), is
inapplicable to his case; and that the Government failed to
provide reasonable and timely notice of the forfeiture of his
property.
Contrary to Cooper’s contentions, the district court
properly invoked 28 U.S.C. § 1915A, as Cooper is a prisoner
seeking redress from governmental entities and employees.
Nothing in the statutes indicates that if one party moves for
dismissal under FED. R. CIV. P. 12(b)(6), the district court is
precluded from dismissing sua sponte the remaining defendants
pursuant to 28 U.S.C. § 1915A. See FED. R. CIV. P. 12(b)(6); 28
U.S.C. § 1915A.
We review a district court’s ruling on a Rule 12(b)(6)
motion de novo. Jackson v. City of Beaumont Police Dep’t, 958
F.2d 616, 618 (5th Cir. 1992).
Cooper’s argument that his filing with the Bureau of Prisons
was sufficient to satisfy the FTCA’s exhaustion requirement runs
contrary to the clear language of the statutes requiring that the
claim first be presented to the “appropriate Federal agency.” 28
U.S.C. §§ 2401(b), 2675; see Montoya v. United States, 841 F.2d
102, 104 (5th Cir. 1988). Cooper’s argument that Heck is
inapplicable to his case is also without merit, as Cooper is now
serving a 240-month sentence for numerous counts of conviction
No. 01-21126
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that have been affirmed. See United States v. Cooper, 966 F.2d
936 (5th Cir. 1992).
Cooper reasserts the merits of his claim that the Government
failed to provide reasonable and timely notice of the forfeiture
of his property, but he makes no coherent argument challenging
the district court’s determination that he failed to assert this
claim within the applicable six-year limitations period. See 28
U.S.C. § 2401(a). Although we liberally construe pro se briefs,
see Haines v. Kerner, 404 U.S. 519, 520 (1972), we require
arguments to be briefed in order to be preserved. Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). We note that, in
his reply brief, Cooper does offer challenges to the district
court’s time-bar determination. However, because Cooper raises
these arguments for the first time in his reply brief, we will
not consider them. Id. at 225.
Accordingly, the district court’s judgment is AFFIRMED.