Wallen v. Owens

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 96-10020 Summary Calendar __________________

DAVID LYNN WALLEN,

Plaintiff-Appellant,

versus

EDWARD G. OWENS, Warden, ET AL.,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 2:95-CV-92 - - - - - - - - - - April 3, 1996 Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:*

David Lynn Wallen appeals the dismissal for frivolousness of

his civil rights complaint asserting various constitutional

violations surrounding his prison disciplinary hearing and

punishment. Wallen argues the merits of his claim. We have

carefully reviewed his arguments and the record. For essentially

the same reasons as explained by the magistrate judge in his

report and recommendation, we conclude that the court did not

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-10020 -2-

abuse its discretion in dismissing the complaint under 28 U.S.C.

§ 1915(d).

Wallen argues that the prison rulebook and his prison

disciplinary records were improperly used at the Spears**

hearing and the magistrate judge improperly ended the hearing as

Wallen attempted to explain further the alleged constitutional

violations. Our review reveals no error. Wallen also argues

that error ensued from the denial of his written motion to amend

his complaint. Wallen had the right to amend his complaint once

before the service of a responsive pleading. See Fed. R. Civ. P.

15(a). The claims which Wallen desired to add to his complaint

have been considered by this court, and the claims are without

merit. Therefore, any error by denying Wallen the right to amend

his complaint was harmless. See Fed. R. Civ. P. 61.

AFFIRMED.

** Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).