United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 22, 2006
Charles R. Fulbruge III
Clerk
No. 04-41313
Summary Calendar
MICHAEL LEE GORDON,
Plaintiff-Appellant,
versus
UP DAY, Case Manager; UP HANES, Assistant Warden; RICKY MCINTOSH,
Unit Manager; UP DOTY, Case Manager Coordinator; UP MCWILLIAMS,
Case Manager; UP WRIGHT, Counselor; UP CRUZ, Counselor; UP
FRANDLE, Counselor; UP HERNANDEZ, Counselor; UP SACKET, Case
Manager; UP HANKS, Case Manager; UP TOWNSEND, Lieutenant; ERNEST
CHANDLER, Warden; KATHLEEN HAWK-SAWYER, Director of the Bureau of
Prisons,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CV-177
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Michael Lee Gordon, federal prisoner #64459-061, commenced
this civil rights action against a number of Bureau of Prison
employees. Gordon alleged that he was denied his right of access
to the courts when his case manager lost the documents necessary
to correct a defect in his original petition for a writ of
*
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this opinion should not be published and is not precedent except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. 04-41313
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certiorari to the United States Supreme Court after Gordon asked
his case manager to copy them. Gordon was unable to copy the
documents himself due to his confinement in the Special Housing
Unit.
The district court dismissed Gordon’s complaint under
28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a
claim. Gordon contends that the district court erred in finding
that his original petition for a writ of certiorari was untimely.
He asserts that his original petition for a writ of certiorari
from the Sixth Circuit’s November 22, 2000, decision affirming
his conviction, was filed on February 24, 2001. He contends that
the Sixth Circuit’s decision was entered on November 27, 2000,
but he has provided no information to support this contention,
and it is belied by that court’s docket. The Clerk of the
Supreme Court issued a letter requesting Gordon to provide a copy
of the Sixth Circuit’s decision within 60 days, so that the
timeliness of his petition for a writ of certiorari could be
determined. Because Gordon’s corrected petition was lost after
he asked his case manager to copy it, he did not file a timely
response to the Clerk’s request. The district court did not err
in holding that, even if Gordon had filed a timely response, his
petition for a writ of certiorari still would have been denied as
untimely. Accordingly, the district court did not err in
dismissing Gordon’s claim for denial of access to the courts
because this right extends only to nonfrivolous claims. See
No. 04-41313
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Lewis v. Casey, 518 U.S. 343, 355 (1996); Harper v. Showers,
174 F.3d 716, 718 & n.3 (5th Cir. 1999).
Because Gordon sued federal employees, the district court
erred in holding that Gordon had an adequate postdeprivation
remedy in state court with respect to any claim for the
deprivation of property. However, we affirm the district court’s
dismissal of this claim on the alternative ground that the
Federal Tort Claims Act provides such a remedy. Cf. Hudson v.
Palmer, 468 U.S. 517, 533 (1984) (holding with respect to claims
against state officials that the intentional deprivation of
property does not violate due process if there is an adequate
postdeprivation remedy).
AFFIRMED.