Dockeray v. Black , 98 F. App'x 1001 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 7, 2004
Charles R. Fulbruge III
Clerk
No. 04-50025
Summary Calendar
WILLIAM J. DOCKERAY, JR.,
Plaintiff-Appellant,
versus
FNU BLACK, Warden; LATNYN SAMPSON;
GREG SKEEN; FNU BEND, Major; FNU
MCMILLAN, Lieutenant; FNU BENTLEY;
SHEANA JOHNSON; FNU BURNETT; FNU
JANUARY; GIL HAYES; HEREALD GARRETT;
RAY E. RODRIGUEZ; PAUL HARDWICK; HOMER
HERNEY; JOHN ALVIS; SHAWN REGEAN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-03-CV-888-LY
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
William J. Dockeray, Texas prisoner # 563359, has filed an
application for leave to proceed in forma pauperis (IFP) on appeal,
following the district court’s dismissal as frivolous of his civil
rights complaint. By moving for IFP, Dockeray is challenging the
*
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that this opinion should not be published and is not precedent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.
district court’s certification that IFP status should not be
granted on appeal because his appeal is not taken in good faith.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Dockeray contends that the district court in Austin lacked
documents filed in the Houston district court before the case was
partially transferred to Austin. There is no indication that any
such documents are lacking. To the extent that Dockeray is
challenging the order partially transferring the case to Austin and
asserting that he lacked supplies for submitting documents to the
district court, these issues are not the reasons that the district
court denied IFP certification. See id. at 203.
Dockeray asserts that the district court should not have
dismissed his complaint without giving him notice of problems with
the case. To the extent this constitutes an assertion that he
should have been given an opportunity to amend his complaint, he
was allowed to do so through the filing of a more definite
statement. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
The district court concluded that Dockeray’s claims against
individuals at the Lockhart Work Facility and the Caldwell County
Jail were barred by limitations because the events had occurred in
1998, but Dockeray had not filed his complaint until 2002.
Dockeray asserts that his complaint is in fact timely because he
properly filed a civil rights complaint in 1999 by submitting it to
prison officials, although the district court never received that
complaint. See Cooper v. Brookshire, 70 F.3d 377, 379-81 (5th Cir.
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1995). Even if Dockeray’s interpretation of the mailbox rule is
correct, he has not established that his complaint was filed in a
timely manner. See TEX. CIV. PRAC. AND REM. CODE ANN. § 16.003(a) (West
Supp. 1997). Dockeray’s claims arose at the time he learned of his
injuries in 1998. See Piotrowski v. City of Houston, 51 F.3d 512,
516 (5th Cir. 1995). Dockeray has failed to establish a civil
rights conspiracy. See 42 U.S.C. § 1985; Miss. Women’s Med. Clinic
v. McMillan, 866 F.2d 788, 793 (5th Cir. 1989).
The district court concluded that Dockeray’s challenges to his
parole revocation and the calculation of time credits was barred by
Heck v. Humphrey, 512 U.S. 477 (1994). Dockeray does not challenge
this ruling on appeal, and any such claim is deemed abandoned.
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).
Dockeray’s appeal is thus without arguable merit and is
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, we uphold the district court’s order
certifying that the appeal is not taken in good faith and denying
Dockeray IFP status on appeal, we deny the motion for leave to
proceed IFP, and we DISMISS Dockeray’s appeal as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
APPEAL DISMISSED.
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