                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 28, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-41738
                         Summary Calendar


DONALD R. TAYLOR,

                                    Plaintiff-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; DAVID L. STACKS, Warden;
FRANKIE L. REECANO, Assistant Warden; CAROLYN HANLEY, Mailroom
Supervisor; LAURA MORGAN, Mailroom Clerk III; J. SMITH, Assistant
Grievance Administrator,,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                        USDC No. 9:05-CV-44
                       --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Donald R. Taylor, Texas prisoner # 1028547, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 suit, in which

he alleged that his legal mail was interfered with, preventing

him from filing a petition for discretionary review (PDR) of the

decision of the state appellate court affirming his conviction of

aggravated assault, in violation of his First Amendment right of

access to the courts.   After conducting a hearing pursuant to

     *
       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this opinion should not be published and is not precedent except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. 05-41738
                                  -2-

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), the magistrate

judge dismissed the complaint as frivolous under 28 U.S.C.

§ 1915A(b)(1), reasoning that it lacked any arguable basis in law

because it failed to allege anything more than mere negligence on

the part of the defendants, which is not actionable under 42

U.S.C. § 1983.     See Richardson v. McDonnell, 841 F.2d 120 (5th

Cir. 1988).   We review de novo the district court’s dismissal

pursuant to § 1915A.     Ruiz v. United States, 160 F.3d 273, 275

(5th Cir. 1998).

     Taylor argues that the district court erred when it

dismissed his complaint as frivolous based on its determination

that he had not alleged a constitutional violation.    A prison

official’s interference with a prisoner’s legal mail may violate

the prisoner’s constitutional right of access to the courts.

Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993).    However,

to state a claim based on delay or interference with the mail, a

plaintiff must show actual injury.     See Lewis v. Casey, 518 U.S.

343, 351-54 (1996); Ruiz, 160 F.3d at 275.    To satisfy this

requirement, Taylor must show that he would have raised a

meritorious issue in his PDR.     See id.

     In considering a PDR, the Texas Court of Criminal Appeals is

limited to consideration of issues presented to and decided by

the intermediate court of appeals.     Tallant v. State, 742 S.W.2d

292, 294 (Tex. Crim. App. 1987).    Accordingly, to prevail on his

denial-of-access claim, Taylor would have to show that he was
                             No. 05-41738
                                  -3-

prevented from raising a meritorious issue in a PDR with regard

to the substantive issues decided in his direct criminal appeal.

See Ruiz, 160 F.3d at 275.

       Taylor has made no effort in his complaint, during the

Spears hearing, or in his brief before this court to show that he

was prevented by the defendants from asserting a meritorious

issue in a timely PDR; he does not state what substantive issues

would have been raised or why the Court of Criminal Appeals would

have resolved those issues in his favor.    See Ruiz, 160 F.3d at

275.    Nor does he assert that he could have shown in an amended

complaint that his position as a litigant was prejudiced.    The

district court therefore did not err in dismissing his complaint.

       Taylor further argues that the district court’s dismissal of

his complaint, without first affording him an opportunity to

amend it to add allegations of deliberate indifference, was

erroneous.    Because the amendment Taylor sought to make would

have been futile in light of his failure to satisfy the actual

injury requirement, the district court did not err in dismissing

the complaint without sua sponte giving Taylor an opportunity to

amend.    See Jones v. Greninger, 188 F.3d 322, 326-27 (5th Cir.

1999); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986);

see also Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262

(11th Cir. 2004) (holding that “denial of leave to amend is

justified by futility when the complaint as amended is still

subject to dismissal”).
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                 -4-

AFFIRMED.
