IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40264 Summary Calendar

MARVIN WADDLETON, III,

Plaintiff-Appellant,

versus

J. BLALOCK, Sergeant, Smith County Jail; UNIDENTIFIED MCGEE, Officer, Smith County Jail; UNKNOWN OFFICER, (3); J.C. RICHARDSON, Officer, Smith County Jail; J. GORE, Officer, Smith County Jail; C. HERDON, Sergeant; SMITH COUNTY JAIL,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:00-CV-287 -------------------- November 16, 2001

Before JOLLY, DAVIS and DeMOSS, Circuit Judges.

PER CURIAM:*

Marvin Waddleton, III, Texas prisoner # 924976, appeals

following the dismissal of his civil rights complaint filed

pursuant to

.

Waddleton argues that the magistrate judge erred in denying

him leave to amend his complaint to add new claims and

defendants. Waddleton filed three separate motions to amend.

One sought to add a defendant who is not a “person” who could be

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40264 -2-

sued under

. The other two motions sought to add

claims and defendants that were either duplicative of his

existing complaint, wholly unrelated to his existing complaint,

or that would have been futile because the added claims and/or

defendants would have been subject to dismissal. Accordingly,

the magistrate judge did not abuse her discretion in denying

Waddleton leave to amend his complaint. See Ashe v. Corley,

(5th Cir. 1993).

Waddleton also argues that the magistrate judge erred in

denying him an extension of time within which to locate a

document to support his slander claims. He contends that the

denial was error because the magistrate judge used the absence of

the document to dismiss the slander claim. This argument is

without merit as the magistrate judge did not rely on the absence

of the document in dismissing the claim. Rather, the magistrate

judge correctly dismissed the claim because, under the law of

this circuit, claims involving slander and libel are state law

matters which are not cognizable in a

action.

Geter v. Fortenberry,

(5th Cir. 1988).

Waddleton next argues that the magistrate judge interjected

her personal views of his allegations into the case and twisted

the testimony Waddleton gave at the evidentiary hearing regarding

an excessive-use-of-force incident. A careful review of the

record reveals that the magistrate judge did not misconstrue

Waddleton’s testimony.

Waddleton also challenges the dismissal of several of his

claims. We review dismissals of claims as frivolous for an abuse No. 01-40264 -3-

of discretion and dismissals for failure to state a claim upon

which relief may be granted de novo. Berry v. Brady,

(5th Cir. 1999).

With regard to the July 8, 1998 use-of-force incident,

Waddleton’s brief contains nothing more than a description of the

events giving rise to the incident. Because he does not

challenge the reasons for the dismissal of this claim, he has

abandoned the only issue for this court to review with respect to

that claim. See Brinkmann v. Dallas County Deputy Sheriff Abner,

(5th Cir. 1987) (this court will not address

issues the appellant fails to assert); see also Yohey v. Collins,

(5th ir. 1993) (issues not raised on appeal

are considered waived).

With regard to the October 21, 1998, use-of-force claim, the

proper inquiry is “whether force was applied in a good-faith

effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.” Hudson v. McMillian,

(1992). “The amount of force that is constitutionally

permissible . . . must be judged by the context in which that

force is deployed.” Ikerd v. Blair,

(5th Cir.

1996). Waddleton testified at his evidentiary hearing that he

snatched the keys of an officer passing near his cell. When

another officer entered the cell to search for the keys,

Waddleton attempted to stab the officer in the heart with a

homemade shank. To stop the attack, Waddleton was put in a

choke-hold until he passed out. Waddleton awoke on his cell bed

and suffered only a minor abrasion on his chin. The magistrate No. 01-40264 -4-

judge did not abuse her discretion in dismissing this claim as

frivolous. See Siglar v. Hightower, 112 F.3d at 191, 193 (5th

Cir. 1997).

Waddleton’s argument that the magistrate judge erred in

dismissing his deprivation-of-property claims must fail. Because

the state of Texas has adequate post-deprivation remedies, a

prisoner does not have a basis for a

claim for

the deprivation of his property. Murphy v. Collins,

(5th Cir. 1994).

Waddleton admitted at the evidentiary hearing that he had

only assumed that retaliation was the motive for jail officials’

repeated deprivation of his property because he could think of no

other motivation. Because Waddleton alleged no specific factual

basis to support his conclusion assertion, the magistrate judge

did not abuse its discretion in dismissing the retaliation claim

as frivolous. See Moody v. Baker,

(5th Cir.

1988).

Waddleton argues that the magistrate judge erred in

dismissing his delay-of-medical-care claim which arose after an

assault by another inmate. His argument is based on his

assertion that the magistrate judge erroneously stated that he

had received prompt medical care after various use-of-force

incidents. However, the magistrate judge’s statement was

superfluous in that it concerned incidents unrelated to the care

Waddleton received after the inmate assault. Waddleton has not

addressed the correctness of the magistrate judge’s finding that

he failed to allege facts which showed deliberate indifference or No. 01-40264 -5-

substantial harm arising out of the medical care he received

after the inmate assault. Accordingly, he has abandoned the only

issue for this court to review with respect to that claim.

See Brinkmann,

.

Waddleton has also filed a motion for mandatory injunction

requesting that this court compel the Smith County, Texas,

Sheriff Department to return his impounded vehicle or, in the

alternative, to award him damages for the loss of his vehicle.

This motion is construed as a mandamus action. Aside from the

fact that original jurisdiction over a mandamus action lies with

the district court, this court may not grant Waddleton’s motion

because 28 U.S.C. 1361 allows a federal court to “compel an

officer or employee of the United States or any agency thereof to

perform a duty owed to the plaintiff.”

(emphasis added). Title

does not authorize this

court to compel any officer or employee of the state of Texas to

perform any duty. See

. Therefore, Waddleton’s

motion is denied.

The district court’s dismissal of Waddleton’s complaint as

frivolous and for failure to state a claim counts as a “strike”

for purposes of

(g). See Adepegba v. Hammons,

(5th Cir. 1996). Waddleton is warned that if

he accumulates three “strikes,” he will no longer be allowed to

proceed in forma pauperis in any civil action or appeal filed

while he is incarcerated or detained in any facility unless he is

under imminent danger of serious physical injury. See

(g). No. 01-40264 -6-

AFFIRMED. MOTION DENIED. SANCTIONS WARNING ISSUED.