Hughes v. Hamlin

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 25, 2001
• Docket: 01-10602
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10602 Conference Calendar

MICHAEL ANTHONY HUGHES,

Plaintiff-Appellant,

versus

JIM HAMLIN, Criminal District Clerk; PRESTON SCOTT, JR, Clerk,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CV-1991-D -------------------- October 25, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Michael Anthony Hughes, Texas prisoner # 556516, appeals the

dismissal of his 42 U.S.C. § 1983 compliant pursuant to Fed.

R. Civ. P. 12(c). He argues that his constitutional right to

access to the courts was denied when the defendants received but

did not file his state habeas application.

“Judgment on the pleadings is appropriate only if material

facts are not in dispute and questions of law are all that

remain.” Voest-Alpine Trading USA Corp. v. Bank of China, 142

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10602 -2-

F.3d 887, 891 (5th Cir. 1998). A prisoner must allege a

deliberate denial of his right of access to the courts to allege

the deprivation of a substantive constitutional right Jackson v.

Procunier, 789 F.2d 307, 311 (5th Cir. 1986). A prisoner

furthermore may not prevail on a claim that his constitutional

right of access to the courts was violated unless he demonstrates

prejudice. Mc Donald v. Steward, 132 F.3d 225, 230-31 (5th Cir.

1998).

Hughes has alleged no facts which would tend to prove that

the defendants acted deliberately or that the delay caused by

their alleged error prejudiced him in any way. He argues only

that the defendants were under a duty to file his habeas

application and that duty was breached. Hughes has done nothing

more than allege negligent conduct, which is not actionable under

42 U.S.C. § 1983. See, e.g., Jacquez v. Procunier, 801 F.2d 789,

792 (5th Cir. 1986) (where gravamen of the plaintiff's claim is

negligence insofar as it alleges that the defendants breached

their duty to protect the decedent, the Fourteenth Amendment to

the United States Constitution does not afford him a remedy).

AFFIRMED.