Jones v. Fordice

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________ No. 96-60226 Summary Calendar ____________________ RONALD EMERY JONES, Plaintiff - Appellant, versus KIRK FORDICE; MICHAEL MOORE; EDDIE LUCAS, Commissioner, Mississippi Department of Corrections; EDWARD HARGETT, Superintendent, Mississippi State Penitentiary; LAWRENCE HENDERSON, Defendants - Appellees. __________________________________________ Appeal from the United States District Court for the Northern District of Mississippi ( 4:94-CV-235-B-B ) __________________________________________ August 14, 1996 Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges. PER CURIAM:* Ronald Emery Jones, No. 80661, a Mississippi state prisoner, appeals the dismissal with prejudice of his 42 U.S.C. § 1983 action as frivolous. Jones maintains that his incarceration prior to the determination of his direct appeal was unconstitutional. This * Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. claim necessarily raises the invalidity of his conviction, which Jones cannot establish and is, therefore, not cognizable under § 1983. Heck v. Humphrey, __ U.S.__, 114 S.Ct. 2364, 2372 (1994). Jones’ contention that the district court was required to conduct an evidentiary hearing before modifying the magistrate judge’s report in order to add additional findings is without merit. The district court may accept, reject, or modify, in whole or in part, the findings made by the magistrate judge. See Archie v. Christian, 808 F.2d 1132, 1135 (5th Cir. 1987) (en banc). Jones asserts also that the delay of over two years in adjudicating his direct appeal is in itself violative of due process, and he seeks damages. His inability to demonstrate any prejudice resulting from the delay undermines any such claim. See, e.g. United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994), cert. denied, __ U.S. __, 115 S. Ct. 1113 (1995). Jones’ motion to supplement his appellate brief is DENIED, and the judgment is AFFIRMED.