Case: 11-50244 Document: 00511616400 Page: 1 Date Filed: 09/28/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 28, 2011
No. 11-50244 Lyle W. Cayce
Summary Calendar Clerk
TOM JONES, also known as Thomas P. Jones,
Plaintiff-Appellant
v.
CITY OF AUSTIN; SUSAN SCROGGINS; ROD CHERVENKA,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:10-CV-915
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Tom Jones filed a pro se complaint against the City of Austin (the “City”)
and two of its employees alleging violations of the Fifth, Sixth, Eighth, and
Fourteenth Amendments. After adopting the magistrate judge’s
recommendation, the district court dismissed Jones’s complaint with prejudice.
We AFFIRM.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 11-50244
I.
Jones was the president and sole stockholder of Tom Jones Homes, Inc.
(TJH). In 1995, TJH began buying lots and building homes in Austin Lake Hills
Section 2, a Travis County subdivision that lies within the City’s five-mile
extraterritorial jurisdiction. Five years later, TJH contracted to buy an
additional group of approximately 36 lots in Austin Lake Hills Section 2, and
submitted a Site Development Determination request to the City. According to
Jones, the City never responded to his request.
Jones alleges that the City subsequently required TJH to pave a county
street according to municipal specifications; construct an expensive underground
storm sewer system; and relinquish some of its residential lots to permit the
construction of a large water quality pond. In November 2004, the pond failed
during heavy rainstorms. Jones avers that, beginning in 2006, the City began
filing “a series of 35 virtually identical criminal charges against [him] for the
single act of not maintaining the pool.” In December 2009 and January 2010,
Jones was found guilty of two of these charges.
On November 29, 2010, Jones filed suit in federal court against the City
and two of its employees. In his pro se complaint, Jones appeared to allege the
following four constitutional violations: (1) a violation of his Fifth Amendment
due process rights resulting from the City’s failure to respond to his Site
Development Determination request; (2) an impermissible taking under the
Fifth Amendment resulting from the City’s alleged request that TJH relinquish
some of its residential lots; (3) a violation of the Sixth Amendment’s right to a
speedy trial; and (4) an Eighth Amendment violation flowing from the “cruel and
unusual punishment” he endured as a result of the many personal problems that
were caused by the City’s actions.
Approximately two weeks later, the assigned magistrate judge
recommended dismissal of Jones’s suit. On February 8, 2011, the district court
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adopted the magistrate judge’s recommendation and dismissed the suit pursuant
to 28 U.S.C. § 1915(e)(2)(B). That same day, final judgment was entered against
Jones. This appeal followed.
II.
A. Standard of Review
We review dismissal under Section 1915(e)(2)(B)(ii) de novo, applying the
same standard used to review a dismissal under Federal Rule of Civil Procedure
12(b)(6). Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998). Under Rule
12(b)(6), we accept all well-pleaded facts as true and view those facts in the light
most favorable to the plaintiff. See Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009) (citation omitted). We then examine the factual allegations to ensure that
they are “‘enough to raise a right to relief above the speculative level.’” Randall
D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plaintiff must plead
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Id. (internal quotation marks and citations omitted).
As to dismissal pursuant to Section 1915(e)(2)(B)(i), we review a
determination by a district court that a case is frivolous for abuse of discretion.
Warren, 134 F.3d at 734. A complaint is frivolous if it lacks an arguable basis
in law or fact. Id. “A complaint lacks an arguable basis in law if it is based on
an indisputably meritless legal theory, such as if the complaint alleges violation
of a legal interest which clearly does not exist.” Samford v. Dretke, 562 F.3d 674,
678 (5th Cir. 2009) (internal quotation marks and citations omitted). “A
complaint lacks an arguable basis in fact when the facts alleged are fantastic or
delusional scenarios or the legal theory upon which a complaint relies is
indisputably meritless.” Id. (internal quotation marks and citation omitted).
The magistrate judge’s recommendation and the district court’s order
accepting the recommendation are both silent on the precise basis for the
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dismissal of Jones’s complaint. While both generally mention Section
1915(e)(2)(B), they fail to explicitly mention whether the basis for dismissal is
romanette (i) or (ii). Given this uncertainty, we will interpret the dismissal as
being predicated on both (i) and (ii). Accordingly, the de novo standard of review
applies. Samford, 562 F.3d at 678 (“ When a district court dismisses a complaint
both as frivolous and as failing to state a claim under §§ 1915(e)(2)(B)(i) & (ii),
we review the dismissal de novo.”) (citation omitted).
B. Discussion
Generously read, Jones’s complaint appears to bring several distinct
claims under 42 U.S.C. § 1983. We consider each discernible argument Jones
raises on appeal.
1. Due Process
The first two arguments raised by Jones involve alleged due process
violations. According to him, his due process rights were violated when the City:
(1) denied his Site Development Determination request; and (2) denied him his
right to appeal a municipal code violation.
“The threshold requirement of any due process claim is the government’s
deprivation of a plaintiff’s liberty or property interest.” DePree v. Saunders, 588
F.3d 282, 290 (5th Cir. 2009) (citation omitted). Without such an interest, no
right to due process accrues. Id. (internal quotation marks and citation omitted).
A person’s interest in a benefit is a property interest for due process purposes if
there are rules or mutually explicit understandings that support the claim of
entitlement to the benefit. Id. (internal quotation marks and citations omitted).
“Under this analysis, the ‘hallmark of property . . . is an individual entitlement
grounded in state law, which cannot be removed except for cause.’” Hidden Oaks
Ltd. v. City of Austin, 138 F.3d 1036, 1046 (5th Cir. 1998) (quoting Logan v.
Zimmerman Brush Co., 455 U.S. 422, 430 (1982)).
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Jones’s due process claims fail to satisfy this threshold requirement. His
bare allegations of these two deprivations do not provide a plausible basis for
concluding that his due process rights were violated. Because Jones has pointed
to no constitutionally cognizable property interest grounded in state law, his due
process claims were properly dismissed by the district court.1
2. Right to Counsel
Next, Jones argues that his Sixth Amendment right to counsel was
violated when he was denied court-appointed counsel in the district court.2
“Generally speaking, no right to counsel exists in Section 1983 cases.”
Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989). “‘The trial court is not
required to appoint counsel for an indigent plaintiff asserting a claim under
[Section 1983] unless the case presents exceptional circumstances.” Id. (quoting
Ulmer v, Chandler, 691 F.2d 209, 212 (5th Cir. 1982)). “A district court has the
discretion to appoint counsel if doing so would advance the proper
administration of justice.” Id. (citation omitted). We consider various factors in
determining whether the trial court’s refusal to appoint counsel amounted to an
abuse of discretion: (1) the type and complexity of the case; (2) whether the
indigent was capable of presenting his case adequately; (3) whether the indigent
was in a position to investigate the case; and (4) whether the evidence would
consist in large part of conflicting testimony so as to require skill in the
1
Jones also asserts that his due process rights were violated when the City
“unlawfully convicted [him] in its municipal courts.” He fails, however, to identify the
constitutional error that took place at these proceedings. Accordingly, the district court’s
dismissal of this claim was proper.
2
Jones also argues that Sixth Amendment rights were violated when he was not
granted court-appointed counsel in his municipal court proceedings. Because this argument
was not raised in the district court, it has been waived. LeMaire v. La. Dep’t of Transp. &
Dev., 480 F.3d 383, 387 (5th Cir. 2007) (“[A]rguments not raised before the district court are
waived and cannot be raised for the first time on appeal.”) (citation omitted).
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presentation of evidence and in cross examination. Id. (citation omitted). Here,
the district court did not abuse its discretion in denying Jones court-appointed
counsel. Jones’s ability to investigate and present his case sufficiently supports
this conclusion.
3. Speedy Trial
Finally, Jones contends that his Sixth Amendment right to a speedy trial
was violated. In support of this argument, he merely notes the number of docket
entries in the cases involving him and summarily concludes that his “rights to
a speedy trial were grossly violated” by the City. Given this undeveloped
presentation, we conclude that this argument has been abandoned on appeal.
See Dardar v. Lafourache Realty Co., Inc., 985 F.2d 824, 831 (5th Cir. 1993)
(“Questions posed for appellate review but inadequately briefed are considered
abandoned.”) (citations omitted). While we “liberally construe briefs of pro se
litigants and apply less stringent standards to parties proceeding pro se than to
parties represented by counsel, pro se parties must still brief the issues and
reasonably comply with the standards of Rule 28.” Grant v. Cuellar, 59 F.3d
523, 524 (5th Cir. 1995) (citation omitted).
III.
Finding no error in the district court’s judgment, we AFFIRM. All pending
motions are DENIED.
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