Cooper v. USA

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 10, 2002
• Docket: 01-21126
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21126 Summary Calendar

JAMES OSCAR COOPER

Plaintiff - Appellant

v.

UNITED STATES OF AMERICA; KEVIN BLAIR, Drug Enforcement Administration Agent; STEPHEN S MORRIS, US Attorney; HOUSTON POLICE DEPARTMENT; HARRIS COUNTY SHERIFF’S DEPARTMENT; DRUG ENFORCEMENT AGENCY; US MARSHAL SERVICE; THE CITY OF HOUSTON; THE COUNTY OF HARRIS,

Defendants - Appellees

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CV-2823 -------------------- June 7, 2002

Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

James Oscar Cooper, federal prisoner #55036-079, appeals the

district court’s dismissal pursuant to FED. R. CIV. P. 12(b)(6)

and 28 U.S.C. § 1915A of his civil action. Cooper asserts that

the district court misapplied 28 U.S.C. § 1915A; that the

district court erred in dismissing his claim under the Federal

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-21126 -2-

Tort Claims Act (FTCA) for failure to exhaust administrative

remedies; that Heck v. Humphrey, 512 U.S. 477 (1994), is

inapplicable to his case; and that the Government failed to

provide reasonable and timely notice of the forfeiture of his

property.

Contrary to Cooper’s contentions, the district court

properly invoked 28 U.S.C. § 1915A, as Cooper is a prisoner

seeking redress from governmental entities and employees.

Nothing in the statutes indicates that if one party moves for

dismissal under FED. R. CIV. P. 12(b)(6), the district court is

precluded from dismissing sua sponte the remaining defendants

pursuant to 28 U.S.C. § 1915A. See FED. R. CIV. P. 12(b)(6); 28

U.S.C. § 1915A.

We review a district court’s ruling on a Rule 12(b)(6)

motion de novo. Jackson v. City of Beaumont Police Dep’t, 958

F.2d 616, 618 (5th Cir. 1992).

Cooper’s argument that his filing with the Bureau of Prisons

was sufficient to satisfy the FTCA’s exhaustion requirement runs

contrary to the clear language of the statutes requiring that the

claim first be presented to the “appropriate Federal agency.” 28

U.S.C. §§ 2401(b), 2675; see Montoya v. United States, 841 F.2d

102, 104 (5th Cir. 1988). Cooper’s argument that Heck is

inapplicable to his case is also without merit, as Cooper is now

serving a 240-month sentence for numerous counts of conviction No. 01-21126 -3-

that have been affirmed. See United States v. Cooper, 966 F.2d

936 (5th Cir. 1992).

Cooper reasserts the merits of his claim that the Government

failed to provide reasonable and timely notice of the forfeiture

of his property, but he makes no coherent argument challenging

the district court’s determination that he failed to assert this

claim within the applicable six-year limitations period. See 28

U.S.C. § 2401(a). Although we liberally construe pro se briefs,

see Haines v. Kerner, 404 U.S. 519, 520 (1972), we require

arguments to be briefed in order to be preserved. Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). We note that, in

his reply brief, Cooper does offer challenges to the district

court’s time-bar determination. However, because Cooper raises

these arguments for the first time in his reply brief, we will

not consider them. Id. at 225.

Accordingly, the district court’s judgment is AFFIRMED.