IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40264
Summary Calendar
MARVIN WADDLETON, III,
Plaintiff-Appellant,
versus
J. BLALOCK, Sergeant, Smith County Jail; UNIDENTIFIED MCGEE,
Officer, Smith County Jail; UNKNOWN OFFICER, (3); J.C.
RICHARDSON, Officer, Smith County Jail; J. GORE, Officer,
Smith County Jail; C. HERDON, Sergeant; SMITH COUNTY JAIL,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:00-CV-287
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November 16, 2001
Before JOLLY, DAVIS and DeMOSS, Circuit Judges.
PER CURIAM:*
Marvin Waddleton, III, Texas prisoner # 924976, appeals
following the dismissal of his civil rights complaint filed
pursuant to 42 U.S.C. § 1983.
Waddleton argues that the magistrate judge erred in denying
him leave to amend his complaint to add new claims and
defendants. Waddleton filed three separate motions to amend.
One sought to add a defendant who is not a “person” who could be
*
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that this opinion should not be published and is not precedent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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sued under 42 U.S.C. § 1983. The other two motions sought to add
claims and defendants that were either duplicative of his
existing complaint, wholly unrelated to his existing complaint,
or that would have been futile because the added claims and/or
defendants would have been subject to dismissal. Accordingly,
the magistrate judge did not abuse her discretion in denying
Waddleton leave to amend his complaint. See Ashe v. Corley, 992
F.2d 540, 542 (5th Cir. 1993).
Waddleton also argues that the magistrate judge erred in
denying him an extension of time within which to locate a
document to support his slander claims. He contends that the
denial was error because the magistrate judge used the absence of
the document to dismiss the slander claim. This argument is
without merit as the magistrate judge did not rely on the absence
of the document in dismissing the claim. Rather, the magistrate
judge correctly dismissed the claim because, under the law of
this circuit, claims involving slander and libel are state law
matters which are not cognizable in a 42 U.S.C. § 1983 action.
Geter v. Fortenberry, 849 F.2d 1550, 1556 (5th Cir. 1988).
Waddleton next argues that the magistrate judge interjected
her personal views of his allegations into the case and twisted
the testimony Waddleton gave at the evidentiary hearing regarding
an excessive-use-of-force incident. A careful review of the
record reveals that the magistrate judge did not misconstrue
Waddleton’s testimony.
Waddleton also challenges the dismissal of several of his
claims. We review dismissals of claims as frivolous for an abuse
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of discretion and dismissals for failure to state a claim upon
which relief may be granted de novo. Berry v. Brady, 192 F.3d
504, 506 (5th Cir. 1999).
With regard to the July 8, 1998 use-of-force incident,
Waddleton’s brief contains nothing more than a description of the
events giving rise to the incident. Because he does not
challenge the reasons for the dismissal of this claim, he has
abandoned the only issue for this court to review with respect to
that claim. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987) (this court will not address
issues the appellant fails to assert); see also Yohey v. Collins,
985 F.2d 222, 224-25 (5th ir. 1993) (issues not raised on appeal
are considered waived).
With regard to the October 21, 1998, use-of-force claim, the
proper inquiry is “whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7
(1992). “The amount of force that is constitutionally
permissible . . . must be judged by the context in which that
force is deployed.” Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir.
1996). Waddleton testified at his evidentiary hearing that he
snatched the keys of an officer passing near his cell. When
another officer entered the cell to search for the keys,
Waddleton attempted to stab the officer in the heart with a
homemade shank. To stop the attack, Waddleton was put in a
choke-hold until he passed out. Waddleton awoke on his cell bed
and suffered only a minor abrasion on his chin. The magistrate
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judge did not abuse her discretion in dismissing this claim as
frivolous. See Siglar v. Hightower, 112 F.3d at 191, 193 (5th
Cir. 1997).
Waddleton’s argument that the magistrate judge erred in
dismissing his deprivation-of-property claims must fail. Because
the state of Texas has adequate post-deprivation remedies, a
prisoner does not have a basis for a 42 U.S.C. § 1983 claim for
the deprivation of his property. Murphy v. Collins, 26 F.3d 541,
543 (5th Cir. 1994).
Waddleton admitted at the evidentiary hearing that he had
only assumed that retaliation was the motive for jail officials’
repeated deprivation of his property because he could think of no
other motivation. Because Waddleton alleged no specific factual
basis to support his conclusion assertion, the magistrate judge
did not abuse its discretion in dismissing the retaliation claim
as frivolous. See Moody v. Baker, 857 F.2d 256, 258 (5th Cir.
1988).
Waddleton argues that the magistrate judge erred in
dismissing his delay-of-medical-care claim which arose after an
assault by another inmate. His argument is based on his
assertion that the magistrate judge erroneously stated that he
had received prompt medical care after various use-of-force
incidents. However, the magistrate judge’s statement was
superfluous in that it concerned incidents unrelated to the care
Waddleton received after the inmate assault. Waddleton has not
addressed the correctness of the magistrate judge’s finding that
he failed to allege facts which showed deliberate indifference or
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substantial harm arising out of the medical care he received
after the inmate assault. Accordingly, he has abandoned the only
issue for this court to review with respect to that claim.
See Brinkmann, 813 F.2d at 748.
Waddleton has also filed a motion for mandatory injunction
requesting that this court compel the Smith County, Texas,
Sheriff Department to return his impounded vehicle or, in the
alternative, to award him damages for the loss of his vehicle.
This motion is construed as a mandamus action. Aside from the
fact that original jurisdiction over a mandamus action lies with
the district court, this court may not grant Waddleton’s motion
because 28 U.S.C. 1361 allows a federal court to “compel an
officer or employee of the United States or any agency thereof to
perform a duty owed to the plaintiff.” 28 U.S.C. § 1361
(emphasis added). Title 28 U.S.C. § 1361 does not authorize this
court to compel any officer or employee of the state of Texas to
perform any duty. See 28 U.S.C. § 1361. Therefore, Waddleton’s
motion is denied.
The district court’s dismissal of Waddleton’s complaint as
frivolous and for failure to state a claim counts as a “strike”
for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 385 (5th Cir. 1996). Waddleton is warned that if
he accumulates three “strikes,” he will no longer be allowed to
proceed in forma pauperis in any civil action or appeal filed
while he is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
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AFFIRMED. MOTION DENIED. SANCTIONS WARNING ISSUED.