Lloyd v. Pendleton Land & Exploration, Inc.

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 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 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- (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 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.