Sauceda v. Williams, et al, No. 06-10024 (5th Cir. 2006)
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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 27, 2006 Charles R. Fulbruge III Clerk No. 06-10024 Summary Calendar JAVIER SAUCEDA, Plaintiff-Appellant, versus JANAY B. WILLIAMS; LARRY HELLUMS; DAVID SCOTT; CARY COOK; KELLI WARD; WILLIAM BARDIN, Defendants-Appellees. -------------------Appeal from the United States District Court for the Northern District of Texas USDC No. 1:05-CV-202 -------------------Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* Javier Sauceda, Texas prisoner # 839353, proceeding pro se and in forma pauperis (IFP), appeals the district court s dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C. § 1915(e) as frivolous and for failure to state a claim. Sauceda raised claims concerning the confiscation of a pair of Nike tennis shoes and the resulting disciplinary proceeding. A dismissal under § 1915(e)(2)(B) as frivolous is reviewed for abuse of discretion, while a dismissal for failure to state a * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-10024 -2claim is reviewed de novo. & n.3 (5th Cir. 1999). Harper v. Showers, 174 F.3d 716, 718 Although Sauceda may be permitted to assert his claims in a § 1983 action, see Allen v. Thomas, 388 F.3d 147, 148-49 (5th Cir. 2004), Sauceda has not shown that the district court erred in dismissing his § 1983 claim for deprivation of property. See Zinermon v. Burch, 494 U.S. 113, 127-28 (1990); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Sauceda also asserts that his civil rights were violated when prison officials filed a false disciplinary charge against him. The district court correctly determined that Sauceda s assertions concerning his disciplinary proceeding were barred by Heck v. Humphrey, 512 U.S. 477 (1994); cf. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). Further, as for the district court s determination that certain claims were barred for Sauceda s failure to exhaust administrative remedies, Sauceda does not challenge this determination. As a result, Sauceda has abandoned this issue, and this court need not address it. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); See Yohey v. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Sauceda further asserts that he should have been afforded an opportunity to amend his complaint before it was dismissed. The district court acted within its authority when it dismissed Sauceda s complaint without affording Sauceda the opportunity to No. 06-10024 -3amend his complaint. See § 1915(e). A district court does not err in dismissing a case without providing an opportunity to amend when no viable claim is perceptible from the underlying facts asserted in the plaintiff s pleadings. See Jones v. Greninger, 188 F.3d 322, 326-27 (5th Cir. 1999). AFFIRMED.
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