Hendrickson v. Davis , 172 F. App'x 48 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 22, 2006
Charles R. Fulbruge III
Clerk
No. 04-20938
Summary Calendar
JACK L. HENDRICKSON,
Plaintiff-Appellant,
versus
THOMAS A. DAVIS, JR.; LACY ROGERS;
OFFICE OF THE ATTORNEY GENERAL OF TEXAS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(4:04-CV-4133)
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Jack L. Hendrickson, Texas prisoner #
1140046, appeals the district court’s dismissal of his 42 U.S.C. §
1983 civil rights complaint against Colonel Thomas A. Davis, Jr.
(Colonel Davis), Director of the Texas Department of Public Safety
(DPS), and San Jacinto County Sheriff Lacy Rogers (Sheriff Rogers)
for failure to state a claim on which relief may be granted.
A complaint fails to state a claim on which relief may be
granted if, taking the plaintiff’s allegations as true, he could
*
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this opinion should not be published and is not precedent except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.
prove no set of facts in support of his claim that would entitle
him to relief. Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir.
1999). We review de novo a dismissal for failure to state a claim
upon which relief may be granted. Id.
Hendrickson contends that the district court erred when,
rather than accepting the facts in his complaint as true and
viewing them in the light most favorable to him, the court
improperly considered the substantive evidence submitted with the
Martinez1 report to resolve disputed issues of fact.
The district court erred to the extent that it considered the
substantive evidence in the Martinez report to resolve disputed
issues of fact. See Shabazz v. Askins, 980 F.2d 1333, 1334-35
(10th Cir. 1992). Any such error was harmless, however, as we
conclude that even accepting Hendrickson’s allegations as true and
resolving all disputed facts in his favor, the district court
properly dismissed his complaint for failure to state a claim.
Hendrickson also contends that the district court erred when
it determined that he failed to state a claim against Colonel Davis
and Sheriff Rogers. Hendrickson’s allegations that the officers
involved in the incident were acting under the authority of Colonel
Davis and Sheriff Rogers are insufficient to state a claim against
these two officials. See Thompkins v. Belt, 828 F.2d 298, 304 (5th
Cir. 1987). Further, Hendrickson’s conclusional allegations,
1
Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).
2
raised for the first time on appeal, that DPS officers are not
trained for dynamic home entry, that Colonel Davis was personally
involved in failing to train the DPS officers, and that Sheriff
Rogers was personally involved by employing untrained DPS officers,
are neither considered nor sufficient to prevent a dismissal for
failure to state a claim. See Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342 (5th Cir. 1999); Koch v. Puckett, 907 F.2d 524,
530 (5th Cir. 1990); Kane Enters. v. MacGregor (USA) Inc., 322 F.3d
371, 374 (5th Cir. 2003). The district court did not err in
dismissing Hendrickson’s complaint against Colonel Davis and
Sheriff Rogers.
AFFIRMED.
3