Colgrove v. Grant ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 00-40843
Summary Calendar
____________________
RAY COLGROVE,
Plaintiff-Appellant,
versus
R. GRANT; J. SMITH; M. UPSHAW; BILL CHEATHAM;
ANDY DAVILA; SAMMY BUENTELLO; WAYNE SCOTT;
J. PARKER, Officer - Coffield Unit; P. CRUTCHER,
Officer - Coffield Unit; R. ARENT, Officer -
Coffield Unit; S. UPTON, Officer - Coffield Unit,
Defendants-Appellees.
____________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(6:99-CV-377)
____________________________________________________________
February 26, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Ray Colgrove, Texas state prisoner # 471509, appeals the
dismissal of his 42 U.S.C. § 1983 civil rights complaint as
frivolous, pursuant to 28 U.S.C. § 1915A(b) and 42 U.S.C.
§ 1997e(c), or, alternatively, granting summary judgment. The
district court neither conducted an evidentiary hearing, pursuant
*
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this opinion should not be published and is not precedent except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.
to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), nor provided
Colgrove with a questionnaire.
“A complaint is frivolous if it lacks an arguable basis in law
or fact.” Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999)
(internal quotation marks and citations omitted). “A complaint
lacks an arguable basis in law if it is based on an indisputably
meritless legal theory, such as if the complaint alleges the
violation of a legal interest which clearly does not exist.” Id.
(internal quotation marks and citations omitted). “A complaint
lacks an arguable basis in fact if, after providing the plaintiff
the opportunity to present additional facts when necessary, the
facts alleged are clearly baseless.” Id. (internal quotation marks
and citations omitted). Dismissals under 42 U.S.C. § 1997e(c) and
28 U.S.C. § 1915A are reviewed de novo. See Ruiz v. United States,
160 F.3d 273, 275 (5th Cir. 1998).
Colgrove presented the following claims in his complaint:
(1) he was being denied good-time credits without due process of
law; (2) he was a victim of racial discrimination because he
remained confined in administrative segregation while similarly
situated black inmates were allowed to remain in, or were returned
to, the general population; (3) his due process rights were violated
because he was being confined in administrative segregation for the
actions of past gang members; (4) he was being denied flat-time
credits without due process of law; (5) he was being denied the
2
good-time earning status achieved by other similarly-situated
inmates in administrative segregation; (6) he was being confined in
administrative segregation as retaliation for his past legal
activities and verbal confrontations with defendant Grant; (7) he
was being retaliated against for his utilization of the inmate
grievance system; (8) his due process rights were violated because
he was being charged with violating rules that never existed or were
never posted; (9) defendant Upton was deliberately indifferent to
his serious medical needs; and (10) he was being retaliated against
by defendant Parker for his utilization of the inmate grievance
system to remedy Parker’s attempts to deprive him of property.
The district court did not err in dismissing, as frivolous,
Colgrove’s first, third, fourth, sixth, seventh, eighth, and tenth
claims. Regarding the fourth, eighth, and tenth claims, Colgrove
abandoned them on appeal by failing to contend in his appellate
brief that the district court erred in dismissing them. See Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987) (failing to identify any error in district court’s analysis
same as if appellant had not appealed judgment). As for the first,
third, sixth, and seventh claims: Colgrove’s first and third lacked
an arguable basis in law, see Pichardo v. Kinker, 73 F.3d 612, 612,
613 (5th Cir. 1996); Luken v. Scott, 71 F.3d 192, 193-94 (5th Cir.
1995), cert. denied, 517 U.S. 1196 (1996), as did his sixth, see
3
Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995), cert. denied,
516 U.S. 1084 (1996); and the seventh lacked an arguable basis in
fact. See id. Accordingly, the dismissal of Colgrove’s first,
third, fourth, sixth, seventh, eighth, and tenth claims is AFFIRMED.
The district court erred, however, in dismissing, as frivolous,
Colgrove’s second, fifth, and ninth claims. His second and fifth
claims did not lack an arguable basis in law. See Sandin v. Conner,
515 U.S. 472, 487 & n.11 (1995). And, without Colgrove receiving
the benefit of discovery or a Spears hearing, his ninth claim did
not lack an arguable basis in law or fact. See Estelle v. Gamble,
429 U.S. 97, 106 (1976). Accordingly, the dismissal of Colgrove’s
second, fifth, and ninth claims, as well as the summary judgment as
to those claims, are VACATED and the case is REMANDED for further
proceedings as to those claims.
AFFIRMED IN PART; VACATED and REMANDED IN PART
4