IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10705
Summary Calendar
ALVIN RAY COOPER,
Plaintiff-Appellant,
versus
RICK HUDSON, Warden;
GREGORY T. FRANKLIN, Captain,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:96-CV-103
- - - - - - - - - -
February 19, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Alvin Ray Cooper, Texas prisoner # 534218, appeals the
district court’s dismissal of his civil rights claims as
frivolous and for failure to state a claim. Cooper argues that
1) the district court erred in dismissing his claims prior to the
expiration of the period for filing objections to the magistrate
judge’s report; 2) the district court erred in dismissing his
claims of due process violations and of retaliation; and 3) the
*
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that this opinion should not be published and is not precedent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.
magistrate judge erred in consolidating, for purposes of
conducting a Spears** hearing, the instant case with another
civil rights action in which Cooper is the plaintiff.
As Cooper suggests, the district court dismissed his civil
rights claims only six days after Cooper received the magistrate
judge’s report and recommendation. As a general rule a district
court errs if it does not consider timely-filed objections to a
magistrate judge's report and recommendation. See 28 U.S.C.
§ 636(b)(1)(C); Smith v. Collins, 964 F.2d 483, 485 (5th Cir.
1992). However, Cooper has not demonstrated that he ever filed
his objections in the district court. Even assuming Cooper
submitted his objections to the district court, any error by the
district court in not considering those objections is harmless.
See Smith, 964 F.2d at 485.
Normally a party’s failure to file timely objections limits
appellate review to plain error. See Douglass v. United Servs.
Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Robertson v.
Plano City of Texas, 70 F.3d 21, 23 (5th Cir. 1995). The
Douglass rule, however, generally is not applied if the district
court engages in de novo review of the points considered by the
magistrate judge. Douglass, 79 F.3d at 1429. In light of the
district court’s entry of judgment only six days after Cooper
received the report and recommendation and the district court’s
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
independent review of the magistrate judge’s report, review by
this court is not limited to plain error.
Because Cooper’s due process claims call into question the
lawfulness of his punishment following the disciplinary hearings
and he has not demonstrated that he has obtained relief as
required by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the
claims are not cognizable in a § 1983 proceeding. See Clarke v.
Stalder, 121 F.3d 222, 226 (5th Cir. 1997).
Neither the magistrate judge nor the district court
expressly addressed Cooper’s claim that the disciplinary charges
were brought against him in retaliation for his exercise of his
right of access to courts. “To state a claim of retaliation an inmate must allege
the violation of a specific constitutional right and be prepared to establish that but for the
retaliatory motive the complained of incident . . . would not have occurred.” Woods v. Smith, 60
F.3d 1161, 1166 (5th Cir. 1995).
Cooper argues that he was charged with the disciplinary
infractions in retaliation for seeking redress for wrongdoings
and for being a “writ writer.” He contends that officials
informed him that the disciplinary charges were retaliatory and
that officials informed him that he was being retaliated against
because he was a writ writer. Cooper’s activities as a writ
writer are not constitutionally protected and do not support a
retaliation claim. See Johnson v. Rodriguez, 110 F.3d 299, 310-
3
11 (5th Cir.), cert. denied, 118 S. Ct. 559 (1997); Tighe v.
Wall, 100 F.3d 41, 43 (5th Cir. 1996).
Because Cooper has not adequately briefed the issues of the
district court’s dismissal of his claims that he was subjected to
cruel and unusual punishment and that inadequate evidence
supported the disciplinary actions, these claims have been
abandoned. See Evans v. City of Marlin, Tex., 986 F.2d 104, 106
n.1 (5th Cir. 1993). Cooper’s conclusional allegations do not
demonstrate that he was harmed by the magistrate judge’s
“consolidation” of this case with another civil rights action for
purposes of a Spears hearing.
AFFIRMED.
4