United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 27, 2006
Charles R. Fulbruge III
Clerk
No. 06-10024
Summary Calendar
JAVIER SAUCEDA,
Plaintiff-Appellant,
versus
JANAY B. WILLIAMS; LARRY HELLUMS; DAVID SCOTT; CARY COOK;
KELLI WARD; WILLIAM BARDIN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:05-CV-202
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Javier Sauceda, Texas prisoner # 839353, proceeding pro se
and in forma pauperis (IFP), appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C.
§ 1915(e) as frivolous and for failure to state a claim. Sauceda
raised claims concerning the confiscation of a pair of Nike
tennis shoes and the resulting disciplinary proceeding.
A dismissal under § 1915(e)(2)(B) as frivolous is reviewed
for abuse of discretion, while a dismissal for failure to state a
*
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this opinion should not be published and is not precedent except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. 06-10024
-2-
claim is reviewed de novo. Harper v. Showers, 174 F.3d 716, 718
& n.3 (5th Cir. 1999). Although Sauceda may be permitted to
assert his claims in a § 1983 action, see Allen v. Thomas, 388
F.3d 147, 148-49 (5th Cir. 2004), Sauceda has not shown that the
district court erred in dismissing his § 1983 claim for
deprivation of property. See Zinermon v. Burch, 494 U.S. 113,
127-28 (1990); Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 542 (1985).
Sauceda also asserts that his civil rights were violated
when prison officials filed a false disciplinary charge against
him. The district court correctly determined that Sauceda’s
assertions concerning his disciplinary proceeding were barred by
Heck v. Humphrey, 512 U.S. 477 (1994); cf. Wilkinson v. Dotson,
544 U.S. 74, 82 (2005). Further, as for the district court’s
determination that certain claims were barred for Sauceda’s
failure to exhaust administrative remedies, Sauceda does not
challenge this determination. As a result, Sauceda has abandoned
this issue, and this court need not address it. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
Sauceda further asserts that he should have been afforded an
opportunity to amend his complaint before it was dismissed. The
district court acted within its authority when it dismissed
Sauceda’s complaint without affording Sauceda the opportunity to
No. 06-10024
-3-
amend his complaint. See § 1915(e). A district court does not
err in dismissing a case without providing an opportunity to
amend when no viable claim is perceptible from the underlying
facts asserted in the plaintiff’s pleadings. See Jones v.
Greninger, 188 F.3d 322, 326-27 (5th Cir. 1999).
AFFIRMED.