Allen v. TDCJ

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 97-10374 Summary Calendar OTIS CHAMP ALLEN, Plaintiff-Appellant, versus TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; FRENCH ROBERTSON UNIT, Employees, Defendants-Appellees. - - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 1:96-CV-172-N - - - - - - - - - - January 22, 1998 Before JONES, SMITH, and STEWART, Circuit Judges. PER CURIAM:* Otis Champ Allen, Texas prisoner #493474, proceeding pro se and in forma pauperis (IFP), filed a civil rights suit against the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID), and the employees of the French Robertson Unit. Allen alleged that the TDCJ-ID improperly implemented a policy of issuing parole “set-offs” and “serve alls” which was not in place when he was sentenced, and violated double-jeopardy principles by * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-30506 -2- revoking his parole for a misdemeanor offense for which he paid a fine. He also alleged that numerous French Robertson Unit employees took his personal property and filed false disciplinary charges against him. The district court dismissed Allen’s complaint pursuant to 28 U.S.C. § 1915A. Allen appeals, but does not challenge the basis for the district court’s dismissal. Because Allen does not address on appeal the district court's reasons for dismissing the complaint, he has abandoned the only appealable issue. For the first time on appeal, Allen asserts that certain prison conditions violate his constitutional rights. This court reviews contentions not raised in the district court for plain error. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428 (5th Cir. 1996)(en banc). Allen can show no plain error because the district court did not consider this factual issue he raises the first time on appeal. Robertson v. Plano City of Texas, 70 F.3d 21, 23 (5th Cir. 1995). Allen’s appeal is without arguable merit and is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). It is therefore DISMISSED. 5th Cir. R. 42.2. Allen’s “Motion for Acquittal” is DENIED. We caution Allen that any additional frivolous appeals filed by him or on his behalf will invite the imposition of sanctions. To avoid sanctions, Allen is further cautioned to review any No. 97-30506 -3- pending appeals to ensure that they do not raise arguments that are frivolous. APPEAL DISMISSED; MOTION DENIED; SANCTION WARNING ISSUED.