160 F.3d 273 (5th Cir. 1998), 97-20950, Ruiz v. United States

Docket Nº:97-20950.
Citation:160 F.3d 273
Party Name:Wisting Fierro RUIZ, Plaintiff-Appellant, v. UNITED STATES of America; Michael N. Milby; Kenneth M. Hoyt, U.S. District Judge; Janet Reno, U.S. Attorney General; Katheleen Hawks; Warden of Federal Correctional Institute Oakdale; John & Jane Doe, 1, 2, 3, Defendants-Appellees.
Case Date:November 20, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 273

160 F.3d 273 (5th Cir. 1998)

Wisting Fierro RUIZ, Plaintiff-Appellant,

v.

UNITED STATES of America; Michael N. Milby; Kenneth M.

Hoyt, U.S. District Judge; Janet Reno, U.S. Attorney

General; Katheleen Hawks; Warden of Federal Correctional

Institute Oakdale; John & Jane Doe, 1, 2, 3, Defendants-Appellees.

No. 97-20950.

United States Court of Appeals, Fifth Circuit

November 20, 1998

Page 274

Wisting Fierro Ruiz, Forrest City, AR, pro se.

Appeal from the United States District Court for the Southern District of Texas.

Before REYNALDO G. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:

Wisting Fierro Ruiz, federal prisoner No. 59534-079, appeals the district court's dismissal of his complaint under 28 U.S.C. § 1915A. In his appellate brief, Ruiz challenges the dismissal of his claims based on the prison officials' failure to deliver to him incoming mail notifying him of final judgments dismissing a 28 U.S.C. § 2255 motion and a FED.R.CIV.P. 41(e) motion for return of property. Primarily due to Ruiz's transfer to another prison facility, he did not receive notice of the dismissals until after the appellate deadlines had passed. Because of this lost opportunity to appeal the dismissal of his underlying claims, Ruiz then made claims in the district court for: (1) damages for the loss of his jewelry under the Federal Tort Claims Act ("the FTCA"), 28 U.S.C. § 2674 and § 1346(a)(2); (2) damages for the failure to receive his mail under the FTCA; (3) injunctive relief for the breach of an implied contract to deliver his mail; and (4) a loss-of-access-to-the courts claim under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and under 28 U.S.C. § 1346(a)(2).

We are first confronted with the issue of which standard of review to use when reviewing a trial court's dismissal pursuant to § 1915A. As part of the screening process of prisoner complaints under § 1915A, a trial court is directed to "dismiss the complaint, or any portion of the complaint, if the complaint--(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted ..." We are currently aware of no authority in this Circuit which has previously determined the proper standard to review appeals dismissed pursuant to this section. Unlike § 1915, § 1915A applies regardless of whether the plaintiff has paid a filing fee or is proceeding in forma pauperis ("IFP"), and also does not distinguish between dismissals as frivolous and dismissals for failure to state a claim.

An IFP complaint may be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) if it has no arguable basis

Page 275

in law or in fact. A dismissal under § 1915(e)(2)(B)(i) is reviewed for abuse of discretion, see Siglar v. Hightower, 112...

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