Webber v. Federal Bureau of Prisons , 200 F. App'x 335 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 19, 2006
Charles R. Fulbruge III
No. 05-10270 Clerk
Summary Calendar
PRINCE S.J. WEBBER,
Plaintiff-Appellant,
versus
FEDERAL BUREAU OF PRISONS; DOES; GLEN FUTCH, MS Intern;
TRISTAN SOPHIA, MA Intern; STEVE RIOS, CC; ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
No. 6:03-CV-79-C
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Prince Webber, a federal prisoner, appeals the dismissal of
his complaint raising claims under, inter alia, Bivens v. Six Un-
known Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971); the First and Fifth Amendments; the Privacy Act, 5 U.S.C.
§ 552a et seq.; the Americans with Disabilities Act (“ADA”); and
*
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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
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the Federal Tort Claims Act (“FTCA”). The district court dismissed
the complaint as frivolous and for failure to state a claim upon
which relief can be granted.
Webber argues that the district court was precluded from dis-
missing by the law of the case doctrine because he originally filed
the complaint in the District Court for the District of Columbia,
where the case had already been screened. He also asserts that the
dismissal denied his right to a jury trial. Webber had no absolute
right to a jury trial, however, and the district court was permit-
ted to dismiss the complaint at any time it determined the action
was frivolous or failed to state a claim. See 28 U.S.C.
§§ 1915(e)(2)(b), 1915A.
Webber states that the district court erroneously dismissed
his Privacy Act claims, because the limitations period should have
been tolled for the wilful or intentional misrepresentation of in-
formation and that all events occurring since July 16, 2000, are
actionable. Webber’s argument fails, because the district court
applied the limitations period only to events occurring before
July 4, 2000. Moreover, Webber fails to show error in the district
court’s conclusion that he did not show wilful or intentional ac-
tion by the defendants. See 5 U.S.C. § 552a(g)(1)(4); Whitley v.
Hunt, 158 F.3d 882, 889 (5th Cir. 1998) (stating that a Privacy Act
claim requires proof that defendants acted wilfully or intention-
ally), abrogated on other grounds by Booth v. Churner, 532 U.S.
731, 735 (2001).
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Webber’s claim concerning “psychological malpractice” is not
a constitutionally cognizable claim, and he fails to show the de-
fendants were deliberately indifferent to his need for treatment.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Varnado v. Lynaugh,
920 F.2d 320, 321 (5th Cir. 1991). With the benefit of our liberal
construction of his pleadings, Webber argues that the defendants
violated the ADA, but his assertion is conclusional and inade-
quately briefed. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993). His argument that the defendants discriminated against
him is also conclusional and unavailing. See Kane Enters. v. Mac-
Gregor (USA), Inc., 322 F.3d 371, 374 (5th Cir. 2003); Woods v. Ed-
wards, 51 F.3d 577, 580 (5th Cir. 1995). Although Webber also con-
tends that the defendants retaliated against him for filing admin-
istrative grievances, he has not alleged a chronology of events
from which retaliation may plausibly be inferred. See Woods v.
Smith, 60 F.3d 1161, 1166 (5th Cir. 1995); see also Johnson v.
Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (holding that prisoner
must allege more than his mere subjective belief that defendant
retaliated against him).
Webber next avers that the district court applied an incorrect
choice of law to his FTCA claim. The court properly applied Texas
law, however, because the law of the state in which the negligent
act or omission occurred determines liability. See Tindall ex rel.
Tindall v. United States, 901 F.2d 53, 55 (5th Cir. 1990); see also
28 U.S.C. § 1346(b)(1). Webber also argues that the district court
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erred by ordering him to amend his complaint and by consolidating
his claims. The order served to focus and clarify Webber’s claims,
which is proper under the screening function of §§ 1915A and
1915(e)(2)(b).
Finally, Webber urges that the district court failed to rule
on his motion for recusal and that the judge is biased. The deni-
al of the recusal motion was implicit in the entry of final judg-
ment dismissing the complaint. See Norman v. Apache Corp., 19 F.3d
1017, 1021 (5th Cir. 1994). Webber has not shown that a reasonable
person would harbor doubts about the judge’s impartiality. See
Levitt v. Univ. of Tex., 847 F.2d 221, 226 (5th Cir. 1988);
28 U.S.C. § 455.
AFFIRMED.
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