Lloyd v. Pendleton Land & Exploration, Inc.

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 2, 1993
• Docket: 92-2293
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_____________

No. 93-2293

(Summary Calendar) _____________

THOMAS H. BARANOWSKI,

Plaintiff-Appellant,

versus

THE STATE OF TEXAS, ET AL.,

Defendants-Appellees.

________________________________________________

Appeal from the United States District Court For the Southern District of Texas CA H 92 2979 ________________________________________________ July 16, 1993

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Thomas Baranowski,1 proceeding pro se and in forma pauperis,

appeals the district court's dismissal of his civil rights suit as

frivolous. He alleged that J. Bates, a TDCJ-ID mailroom

supervisor, diverted his legal mail to the Mail Systems

Coordinating Panel ("MSCP") at TDCJ-ID, rather than sending it to

the district court. Baranowski further alleged that MSCP held his

* Local Rule 47.5.1 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well- settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. 1 Baranowski is currently an inmate at the Texas Department of Criminal Justice))Institutional Division ("TDCJ-ID") at Huntsville, Texas. mail for 38 days, and that such delay caused his pending petition

for habeas corpus relief to be dismissed. Baranowski claimed that:

(1) Bates had denied him access to the courts2 by deliberately

withholding his legal mail;3 and (2) the named-defendants4 had

conspired to deny him access to the courts. Finding that

Baranowski's conclusory allegations failed to state a

constitutional violation, the district court dismissed his civil

rights suit as frivolous, pursuant to 28 U.S.C. § 1915(d) (1988).

Baranowski filed a timely notice of appeal.5

We review a dismissal of an IFP complaint under § 1915(d) for

abuse of discretion. Denton v. Hernandez, ___ U.S. ___, 112 S. Ct.

1728, 1734, 118 L. Ed. 2d 340 (1992). An IFP complaint may be

dismissed under § 1915(d) as frivolous if it lacks an arguable

basis in either law or fact. Nietzke v. Williams, 490 U.S. 319,

325, 109 S. Ct. 1827, 1831, 104 L. Ed. 2d 338 (1989). A court may

2 See Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494, 52 L. Ed. 2d 72 (5th Cir. 1977) ("It is now established beyond doubt that prisoners have a constitutional right of [adequate, effective, and meaningful] access to the courts."). 3 See Richardson v. McDonnell, 841 F.2d 120, 122 (5th Cir. 1988) (stating that a "cause of action may be stated under 42 U.S.C. § 1983 for prison officials' intentional withholding of mail destined for the courts, where it is also alleged that the intentional delay damaged the prisoner's legal position"). 4 Baranowski brought suit against the State of Texas, James Collins (Director of TDCJ-ID), MSCP, and Bates. 5 Construing Baranowski's complaint to challenge the constitutionality of TDCJ-ID correspondence rule 3.9.1.1, the district court determined that such a challenge would fall "within the purview of the remedial decree in the class suit establishing the correspondence rules for the Texas prison." Record on Appeal at 62 (citing Guajardo v. Estelle, 71-H-570). The court therefore held that Baranowski's claim had to be urged through the class representative or by means of intervention in that action to avoid inconsistent adjudications, see Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (en banc), and accordingly dismissed the claim without prejudice. Baranowski does not challenge this holding on appeal.

-2- dismiss as frivolous a § 1983 action supported by only conclusory

allegations. See Wilson v. Budney, 976 F.2d 957, 958 (5th Cir.

1992) (decided after Denton); see also Moody v. Baker, 857 F.2d

256, 258 (5th Cir.), cert. denied, 488 U.S. 985, 109 S. Ct. 540,

102 L. Ed. 2d 570 (1988); Brinkmann v. Johnston, 793 F.2d 111, 112-

13 (5th Cir. 1986).

After reviewing the record, we agree with the district court's

finding that Baranowski did not state any factual basis to support

his charges of denial of access to the courts, and conspiracy to

commit the same. In fact, a grievance form that Baranowski

attached to his complaint indicates that his mail was sent to MSCP

because he failed to put his name, number, and address on the

envelope, as is required by TDCJ-ID correspondence rule 3.9.1.1.6

See Record on Appeal at 23. Responsibility for his own failure to

utilize such access effectively cannot be placed upon Bates. See

Crowder v. Sinyard, 884 F.2d 804, 814 (5th Cir. 1989), limited on

other grounds by Horton v. California, 496 U.S. 128, 110 S. Ct.

2301, 110 L. Ed. 2d 112 (1990). Moreover, to the extent that

Baranowski's complaint can be read to state separately claims

against TDCJ-ID (through MSCP) and the State of Texas, we hold that

such claims are legally frivolous. See Pennhurst State School &

Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 908, 79 L.

Ed. 2d 67 (1984) ("It is clear, of course, that in the absence of

consent a suit in which the State or one of its agencies or

6 Baranowski does not dispute that Bates acted in accordance with such rule.

-3- departments is named as the defendant is proscribed by the Eleventh

Amendment."); see also Loya v. Texas Dep't of Corrections, 878 F.2d

860, 861-62 (5th Cir. 1989). We therefore hold that the district

court did not abuse its discretion in dismissing the suit as

frivolous.7 Accordingly, the district court's judgment is

AFFIRMED.

7 We further need not decide Baranowski's request for appointed counsel.

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