Larson v. Scott

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 1, 2001
• Docket: 00-40814
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40814 Summary Calendar

PAUL ALLEN LARSON

Plaintiff - Appellant

v.

HERBERT S. SCOTT; BRYAN S. HARTNETT; RICHARD THALER; ANTHONY COLLINS; FRANK WILLIAMS, Coach; M. E. CARROLL, Ms; MAIN SYSTEMS COORDINATORS PANEL; A. SCUDDER, Correctional Officer III; OSCAR KNOWLES, Correctional Officer III; TOVAR, Correctional Officer III; BREED, Lieutenant; NJAKA, Sergeant; ADKINS, Major; MAYFIELD, Major; LAPOINTE, Captain; WINDHAM INDEPENDENT SCHOOL DISTRICT; BOYD DISTRIBUTION; SMITH CORONA CORPORATION; C. E. JARVIS; GARY BRISENDINE, Manager, Boyd Distribution Company; JIM TURNER; MARSHALL HERKLOTZ; JAMES A. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; WAYNE SCOTT; CAROL S. VANCE; ABET BUSINESS MACHINES; TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DEPARTMENT,

Defendants - Appellees

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. G-95-CV-654 -------------------- April 30, 2001

Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Paul Larson, Texas prisoner No. 452522, appeals the

dismissal of his complaint alleging civil rights and statutory

violations as frivolous pursuant to 28 U.S.C. § 1915(e)(2), 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-40814 -2-

he moves this court for appointment of counsel. The motion for

counsel is denied. Larson has not demonstrated any exceptional

circumstances that warrant the appointment of counsel. Ulmer v.

Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).

We reject Larson’s suggestion that we exercise this

opportunity to “revisit” our opinion in Larson v. Scott, 157 F.3d

1030, 1032 (5th Cir. 1998). Larson argues that the district

court erred by rejecting as frivolous his challenge to a Texas

Department of Criminal Justice (TDCJ) policy requiring inmates to

purchase word-processing equipment and similar items only from

authorized vendors. Larson has not established that this TDCJ

policy has impinged on his constitutional right of access to the

courts. See Lewis v. Casey, 518 U.S. 343, 351 (1996); Brewer v.

Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993). Larson’s argument

that this policy violates federal antitrust law is frivolous.

The Sherman Antitrust Act does not apply to anti-competitive

actions taken by state agencies and officials in the course of

performing legislatively-authorized functions. Benton, Benton, &

Benton v. La. Public Facilities Authority, 897 F.2d 198, 202-03;

see Parker v. Brown, 317 U.S. 341, 350-51 (1943). The Sherman

Antitrust Act is inapplicable to the TDCJ’s restrictions on

prisoners’ ability to purchase items from outside vendors. See

Tarlton v. Henderson, 467 F.2d 200, 201 (5th Cir. 1972).

We reject as inadequately briefed Larson’s claims that

prison officials retaliated against him and that the district

court failed to address certain unidentified claims raised in his

amended complaint. Larson has failed to support these claims No. 00-40814 -3-

with citation to the record. Yohey v. Collins, 985 F.2d 222,

224-25 (5th Cir. 1993); see FED. R. APP. P. 28(a)(9).

The district court did not err by initially dismissing the

complaint based on Larson’s failure to prosecute, rather than

addressing the merits of the complaint. This court lacks

jurisdiction to review the district court’s determination that

Larson was not entitled to a temporary restraining order. See In

re Lieb, 915 F.2d 180, 183 (5th Cir. 1990). The denial of

injunctive relief was within the discretion of the district court

because Larson has failed to establish a danger of irreparable

injury. Black Fire Fighters Ass’n v. City of Dallas, 905 F.2d

63, 65 (5th Cir. 1990).

The district court did not abuse its discretion by denying

Larson’s request for compensation because Larson has an adequate

state-law remedy to obtain compensation for his lost property.

See Thompson v. Steele, 709 F.2d 381, 383 (5th Cir. 1983); Myers

v. Adams, 728 S.W.2d 771, 772 (Tex. 1987).

AFFIRMED; MOTION FOR COUNSEL DENIED.