UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-40344
Summary Calendar
_______________________
ANTHONY ANTONIO WHITEHURST
Plaintiff-Appellant,
versus
BEAUMONT POLICE DEPARTMENT; BEAUMONT POLICE SWAT DIVISION;
BEAUMONT POLICE NARCOTIC DIVISION; JEFFERSON COUNTY SHERIFF
DEPARTMENT; JEFFERSON COUNTY SWAT DIVISION; JEFFERSON COUNTY
NARCOTIC DIVISION; CARL GRIFFITH, Sheriff; ROBERT HOBBS,
Commander; JIMMY SINGLETARY, Commander; ROY BIRDSONG; BART OWENS;
RON HOBBS; CHRIS PADGET; CHUCK ASHWORTH; BILL GATES;
DAVID FROMAN; JERRY LACHANCE; JEFF CHADNEY; TOM H. SMITH;
CLARA RIVERS; CRIMINAL JUSTICE DEPARTMENT OF PARDONS &
PAROLES BOARD; BOB OWENS, Director; CHERYL LIGHT; DIANE
CORONA; TRACY BENNET; BRANDY MORGAN; MELISSA UNDERHILL; A
SECREST; CRIMINAL JUSTICE DEPARTMENT OF PARDONS & PAROLES
BOARD, Beaumont; TOM SCOFFIELD, Chief of Police; ERNIE HERON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
(1:95-CV-787)
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August 4, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Anthony Whitehurst contests the district
court’s dismissal of his civil rights complaint against 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this opinion should not be published and is not precedent except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.
Beaumont Police Department and officers, Jefferson County Sheriff
and other county officials, Texas Criminal Justice Board of Pardons
& Paroles and its officers as frivolous pursuant to 28 U.S.C.
§ 1915. Finding no reversible error, we affirm.
Whitehurst is currently incarcerated in federal prison on
a ten-year term after pleading guilty to drug trafficking charges.
His girlfriend Beverly Joseph, with whom he lived at the 1795
Glasshouse residence in Beaumont, is serving a longer term. The
events covered by Whitehurst’s petition allege harassment and a
“conspiracy” by and among the named officials for, among other
things, illegal trespass, illegal search and seizure, and filing
and dropping various criminal and probation revocation charges.
Where Whitehurst’s personal claims begin and those of Beverly
Joseph end is not at all clear from the complaint; as the two are
not married, Whitehurst had no standing to raise claims of Beverly
Joseph.
The magistrate judge issued Whitehurst an order to show
cause why his case should not be dismissed as frivolous. Summary
judgment motions were filed by the defendants, Whitehurst responded
voluminously, and the magistrate judge recommended dismissing his
claims as frivolous. The district judge, in an opinion issued
three months later, adopted the recommendations and findings of the
magistrate judge, and noting that no objections had been filed to
the magistrate judge’s report, dismissed the case as frivolous.
On appeal, Whitehurst’s initial brief contests only the
alleged failure of the district clerk to send him a copy of the
2
magistrate judge report, so that he could file objections. The
record suggests that Whitehurst was mailed a copy of the magistrate
judge’s recommendation, but for present purposes, we shall assume
Whitehurst’s complaint that he did not receive it is correct.
Nevertheless, his failure to receive a copy of the report in time
to file objections is not necessarily reversible error. See McGill
v. Goff, 17 F.3d 729, 732 (5th Cir. 1994). As we held in McGill,
the district court was able to conduct a thorough review of the
magistrate judge’s decision by looking at the file already in
existence. Whitehurst had been warned that his case might be
dismissed as frivolous and he had thoroughly litigated it up to the
point of the magistrate judge’s report. Finally, this court is
fully able to review Whitehurst’s contentions based on the district
court record and Whitehurst’s briefs. Whitehurst has not been
prejudiced if he failed to receive the magistrate judge’s report.
Turning to the merits of the case, Whitehurst’s
allegations of a “conspiracy” among all of the affected public
agencies are too vague and unspecific to merit attention. Insofar
as his claims relate to the March 12, 1993 execution of a search
warrant, the lower courts had ample ground to accept the
defendants’ claims for qualified immunity. The appellees’ summary
judgment evidence explained the exigencies of the search, which
were determined by the fact that Beverly Joseph had been receiving
advance notification of attempted police investigations by an
officer of the Beaumont Police Department, who was also selling her
the police department’s confiscated cocaine.
3
As for the January 15, 1993 “trespassing” at the same
residence, Whitehurst did not own the residence and cannot assert
such a claim.1 Whitehurst also asserts that on this and other
occasions, various appellees used racial slurs in addressing him
and Joseph, but mere words are not actionable.
Whitehurst appears to be making claims loosely described
as malicious prosecution against various authorities, but he has
not alleged all of the elements necessary for such claims.
Finally, to the extent that Joseph seeks to use any of his alleged
causes of action to impugn his federal conviction, those claims are
barred by Heck v. Humphrey, 114 S.Ct. 2364 (1994).
In sum, Whitehurst’s complaint was properly dismissed as
frivolous. We agree with the district court’s warning that
sanctions should be imposed if Whitehurst pursues further frivolous
litigation.
AFFIRMED.
1
Moreover, on January 15, no one entered Joseph’s residence;
the police officers demanded entry and she refused it without a
search warrant.
4