IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11402
Summary Calendar
RICHARD C. HOWARD, and all outstanding creditors of these named
entities, doing business as C. D. Assets, Inc., doing business as
Howard Trucking, Inc., doing business as Mezzagez Publishing, Inc.,
doing business as Mezzagez Records, Inc., doing business as
Mezzagez Productions, Inc., doing business as North Texas
Autoworks, Inc., doing business as Air of Zulu, Inc., doing
business as R. Howard and Associates, Inc.,
Plaintiff-Appellant,
versus
ANDREW STOVER, individually and in his official capacity; JOHN
VANCE, individually and in his official capacity; LISA PATTERSON,
individually and in her official capacity; JOHN BOERNER,
individually and in his official capacity; FEDERAL BUREAU OF
INVESTIGATION, unknown agent; STATE OF TEXAS, Dallas County,
Defendants-Appellees.
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RICHARD C. HOWARD, And All Secured and Outstanding creditors of
these named Entities DBA’s, doing business as C. D. Assets, Inc.,
doing business as R. Howard and Associates, Inc., doing business as
Howard Trucking, Inc., doing business as North Texas Autoworks,
Inc., doing business as Mezzagez Publishing, Inc., doing business
as Mezzagez Records, Inc., doing business as Mezzagez Productions,
Inc., doing business as Air of Zulu, Inc.,
Plaintiff-Appellant,
versus
STATE OF TEXAS, DALLAS COUNTY OF; JOHN VANCE, Dallas County
District Attorney; ANDREW STOVER, Dallas County Assistant District
Attorney; LISA PATTERSON, Dallas County Investigator; JIM BOWLES,
Dallas County Sheriff; TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas
(3:95-CV-133)
November 20, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Richard Howard, Texas prisoner # 662409, appeals several
rulings by the district court in his consolidated 42 U.S.C. § 1983
action. He appeals the district court’s dismissal of the action
after granting the defendants summary judgment on the issue of
qualified immunity. He also challenges the district court’s denial
of his discovery motions, his motion to amend the complaint, his
motion for a lien attachment, and his motion to compel alternative
dispute resolution (“ADR”). Only defendants Andrew Stover, Lisa
Patterson, and John Vance remain in the action.
Howard argues that the defendants violated his constitutional
rights by taking documents without a search warrant and without
notice to him. The documents were business records of R. Howard
and Associates and were procured through a grand jury subpoena that
was issued in May 1993 and served on the manager of the property
where the documents were located. Although R. Howard and
*
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.
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Associates had leased this property, the lease expired in December
1992, no rent was paid for the month of December, and the property
had been abandoned in November 1992.
The documents were procured through a subpoena duces tecum
issued by a grand jury to a person in possession of the documents.
Thus, Howard was not entitled to notice of the subpoena. See Cinel
v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). A subpoena duces
tecum is not itself a search or seizure. See In re Grand Jury
Proceedings, 115 F.3d 1240, 1244 (5th Cir. 1997). Further, even if
it were a seizure, Howard cannot challenge any seizure of the
documents under the Fourth Amendment because he retained no
reasonable expectation of privacy in the documents after the
property where they were located was abandoned and the lease
expired. See United States v. Barlow, 17 F.3d 85, 88 (5th Cir.
1994); United States v. Ramirez, 810 F.2d 1338, 1340-41 (5th Cir.
1987). Thus, the district court properly granted summary judgment
to the defendants because there was no constitutional violation.
The district granted Howard numerous opportunities to amend
his complaint to correct defects; it only refused to allow the
addition of the Dallas County Commissioners Court because it ruled
that the lack of any constitutional violation made joinder of the
Dallas County Commissioners Court futile. Given that we agree that
there has been no constitutional violation, this ruling is not in
error.
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The district court’s denials of Howard’s motions regarding
discovery are reviewed for abuse of discretion. Howard has
presented us no basis for finding that the district court’s rulings
were abuses of discretion.
Howard appeals the district court’s denial of his request for
a lien to secure a judgment. We see no basis for questioning the
court’s exercise of discretion in denying Howard’s request; in any
case, our disposition of the issue of liability moots the issue of
a lien to satisfy judgment.
Finally, Howard argues that the district court was required by
Federal Rule of Civil Procedure 53 to grant his request for ADR.
Rule 53 gives Howard no such right to ADR; it gives the district
court discretion to appoint a special master to conduct ADR. See
Fed. R. Civ. P. 53 (2000) (“The court in which any action is
pending may appoint a special master therein.”) (emphasis added).
The district court’s denial of Howard’s request for ADR was well
within its discretion.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
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