Lopez v. Williams

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 31, 1995
• Docket: 95-10409
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-10409 Conference Calendar __________________

GEORGE LOPEZ,

Plaintiff-Appellant,

versus

DAVID WILLIAMS, Sheriff, Tarrant County, TX; ELGIN, Officer, Greenbay Facility,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:94CV00532 - - - - - - - - - - (October 19, 1995) Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.

PER CURIAM:*

Lopez challenges the district court's dismissal of his

complaint as frivolous. An in forma pauperis suit may be

dismissed as frivolous if it lacks an arguable basis in law or

fact. 28 U.S.C. § 1915(d); Denton v. Hernandez, 504 U.S. 25, 32-

33 (1992). We review such a dismissal for an abuse of

discretion. Denton, 504 U.S. at 33. In determining whether the

district court abused its discretion by dismissing Lopez's

* Local Rule 47.5 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 Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-10409 -2-

complaint without affording him an opportunity to amend, we

consider whether Lopez's "allegations may pass section 1915(d)

muster" with additional factual development. Eason v. Thaler, 14

F.3d 8, 10 (5th Cir. 1994).

To prevail on a claim under § 1983, a plaintiff must show

that the defendant deprived him of a right secured by the

Constitution and laws of the United States while acting under

color of state law. Manax v. McNamara, 842 F.2d 808, 812 (5th

Cir. 1988). A defendant "must be either personally involved in

the acts causing the deprivation of a person's constitutional

rights, or there must be a causal connection between an act of

the [defendant] and the constitutional violation sought to be

redressed." Lozano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983).

Lopez does not allege any personal involvement by Sheriff

Williams, nor does he implicate a jail policy or custom.

Although Lopez successfully alleges Officer Elgin's personal

involvement, his allegations indicate, at most, that Elgin was

negligent. A state official's negligent act which causes an

unintended loss of property does not implicate the Due Process

Clause. Simmons v. Poppell, 837 F.2d 1243, 1244 (5th Cir. 1988).

Lopez raises for the first time on appeal claims under the

Eighth Amendment of the U.S. Constitution and article 6252-19 of

the "Texas State Claims Act." These issues are not purely legal

and cannot be addressed by this court. Varnado v. Lynaugh, 920

F.2d 320, 321 (5th Cir. 1991).

Accordingly, the judgment of the district court is AFFIRMED.