Bilbrew v. Johnson , 239 F. App'x 49 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2007
Charles R. Fulbruge III
Clerk
No. 05-20951
Summary Calendar
CLARENCE W. BILBREW,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; DOUG DRETKE; J. P.
GUYTON; ROBERT CHANCE, Senior Warden Central Unit; TOMMIE
HAYNES, Assistant Warden Central Unit,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CV-1598
--------------------
Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Clarence W. Bilbrew, Texas prisoner # 882188, filed a 42
U.S.C. § 1983 complaint, which was dismissed by the district
court as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Bilbrew filed a timely notice of appeal, and he has requested a
certificate of appealability (COA). Bilbrew’s COA motion is
denied as unnecessary.
*
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this opinion should not be published and is not precedent except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. 05-20951
-2-
Bilbrew argues that the confiscation of his personal
property constituted a breach of state and federal law. He
maintains that prisoners who are engaged in federal litigation
are entitled, as a class, to First Amendment protections with
regard to person and property. He also maintains that, as a
rule, prisoners who are engaged in federal litigation are
unconstitutionally injured when evidence relating to pending
litigation is not maintained for safekeeping. We decline to
consider any of these arguments because they are raised for the
first time on appeal. See Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342 (5th Cir. 1999).
Bilbrew argues that the district court abused its discretion
in dismissing his complaint prior to service upon the defendants
and without allowing Bilbrew to conduct discovery. The district
court was authorized to issue a sua sponte dismissal order, and
it was not required to allow discovery prior to doing so.
See § 1915(e). Bilbrew’s argument that his complaint would not
have been dismissed if he had been allowed to make more specific
pleadings and his contention that the district court failed to
review the evidence are frivolous and unsupported by the record.
Bilbrew challenges the district court’s denial of his motion
to stay the proceedings. However, by failing to challenge the
district court’s reasons for denying that motion, Bilbrew has
abandoned the issue. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
No. 05-20951
-3-
A dismissal as frivolous under § 1915(e)(2)(B) is reviewed
for an abuse of discretion. Newsome v. EEOC, 301 F.3d 227, 231
(5th Cir. 2002). A complaint is frivolous if it lacks “an
arguable basis in law or fact.” Id. Bilbrew argues that the
district court erred in dismissing his claim that prison
officials retaliated against him for his use of the prison
grievance system. His allegations in the district court,
however, were based on his own personal beliefs and were
insufficient to give rise to a retaliation claim. See Johnson v.
Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997); Whittington v.
Lynaugh, 842 F.2d 818, 819-21 (5th Cir. 1988).
Bilbrew challenges the district court’s dismissal of his
claim that he was deprived of his property without due process of
law. However, because Texas has adequate postdeprivation
remedies for the confiscation of prisoner property, Bilbrew may
not raise this claim in this § 1983 action. See Murphy v.
Collins, 26 F.3d 541, 543-44 (5th Cir. 1994); Sheppard v.
Louisiana Bd. of Parole, 873 F.2d 761, 763 (5th Cir. 1989);
Aguilar v. Chastain, 923 S.W.2d 740, 743-44 (Tex. Ct. App. 1996).
Moreover, contrary to Bilbrew’s assertion, the failure of
individual prison officials to follow the prison’s administrative
rules with regard to the taking and handling of prisoner property
did not, without more, raise a constitutional issue. See Myers
v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996).
No. 05-20951
-4-
The district court dismissed Bilbrew’s claims of deliberate
medical indifference as frivolous because they were wholly
conclusional. Bilbrew’s appellate argument in this regard is
likewise fatally vague. He has thus failed to show that the
district court erred in dismissing this claim. His challenge to
the district court’s dismissal of his conspiracy claim is
similarly doomed by his failure to provide any specific facts to
support his contention that the district court failed to examine
his evidentiary proffers.
Bilbrew has not shown any error regarding the district
court’s dismissal of his complaint as frivolous. His appeal
lacks arguable merit and is therefore dismissed as frivolous.
See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th
Cir. 1983). Bilbrew is reminded that he is barred under 28
U.S.C. § 1915(g) from proceeding in forma pauperis in any civil
action or appeal filed while he is incarcerated or detained in
any facility unless he is under imminent danger of serious
physical injury. Bilbrew v. Wright, No. 05-20637 (5th Cir. Dec.
14, 2006)(decided after the notice of appeal in the instant
case). We caution Bilbrew to review all pending appeals and to
withdraw any that are frivolous.
COA DENIED AS UNNECESSARY; APPEAL DISMISSED.