           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                        September 11, 2009

                                     No. 09-40126                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



JAMSEY BELLE

                                                   Petitioner-Appellant
v.

JANE STRANGE; JOHN TODD; SMITH COUNTY DEPUTY SHERIFFS;
INTERNAL AFFAIRS DEPARTMENT, Smith County Sheriff’s Department;
JANE DOE, Sergeant, Smith County Sheriff’s Department

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:08-CV-363


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Jamsey Belle (“Belle”) appeals the district court’s dismissal, pursuant to
28 U.S.C. § 1915A(b)(1), of his § 1983 action. He also moves to supplement his
brief with a declaration of facts pertaining to the timing of one of his submissions
to the district court. For the reasons set forth below, we deny Belle’s motion to
supplement as moot and affirm the district court’s dismissal of his case.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40126

                          FACTS AND PROCEEDINGS
       Belle, a Texas inmate proceeding pro se and in forma pauperis, filed a civil
rights lawsuit in which he alleged that a Smith County sheriff’s department
sergeant violated his right of access to the courts when she withheld a bag
containing Belle’s personal possessions.1          Among the possessions withheld,
stolen, or lost—Belle’s allegations evolved during the litigation—were court
records and legal work related to his conviction for possession of a controlled
substance. It is unclear from Belle’s pleadings precisely what records or legal
work he lost. He described them in his first amended complaint as “jury sheet[]
transcripts” and asserted that they “contained facts [on] which he would rely to
support his habeas claims.” Earlier, he had alleged that the bag contained,
among other items, “legal work, court records, motion, [and] copy’s [sic] of letter’s
[sic] from attorneys,” including records related to a possession of a controlled
substance conviction that Belle was appealing.
       The injury Belle alleged also evolved as the litigation progressed. His
complaint first explained that he needed the court records to raise “key points”
in an oral argument before the state appellate court. Belle’s later filings do not
rely on this injury; in fact, Belle was represented by court-appointed counsel on
his appeal of the possession conviction. He also wrote a letter to the magistrate
to whom this case was assigned in which he claimed that he was injured because
his wife divorced him while he was incarcerated. That harm was obviously
unrelated to the alleged rights violation, and Belle did not rely on it in his second
amended complaint. He finally settled on the allegation, stated in both in his



       1
         The suit was originally filed against the Smith County Jail and two named sergeants
for the wrong itself, and against unnamed Smith County sheriff’s deputies and the Smith
County “Internal Affairs Department” for their alleged failure to investigate the loss. The
second amended complaint contains only the allegation that a Jane Doe sergeant withheld
Belle’s personal possessions. The defendants did not enter an appearance below and did not
file an opposition brief in this appeal.

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first and second amended complaints, that the loss of the documents impeded his
ability to file an effective pro se habeas petition related to his possession
conviction. The state habeas petition, which Belle successfully submitted in
September 2008, asserted a number of grounds for relief, including ineffective
assistance of counsel and an incorrect evidentiary ruling.
       Belle’s federal § 1983 claim was assigned to a magistrate judge. The
magistrate provided Belle with guidance on the requirements of a “meaningful
access to the courts” claim and allowed him to amend his complaint twice. The
magistrate also considered the letter Belle submitted about his divorce. After
giving Belle numerous opportunities to explain what he was claiming and how
he was injured, the magistrate recommended dismissing the case, pursuant to
28 U.S.C. § 1915A(b)(1), for Belle’s failure to state a claim and for the frivolous
nature of the suit.2          Belle filed a timely objection to the report and
recommendation. The district court appears to have overlooked this objection.
It adopted the report and recommendation and dismissed the case with
prejudice, noting in the order of dismissal that no objections had been filed.3
Belle appeals the dismissal of his case.
       He also moves this court to consider a declaration of facts showing that his
access to the mails was limited in late December 2008—prior to the time that his
second amended complaint and his objection to a report and recommendation
were due. He appears to believe that the district court did not receive his second
amended complaint within the time set by the magistrate. Belle, however, filed


       2
         Section 1915A(b)(1) allows district courts to dismiss certain prisoner complaints that
are “frivolous, malicious, or [that] fail[] to state a claim upon which relief may be granted.”
       3
         Assuming that the district court erred in not considering the objections, the error was
harmless. Belle’s objections did not raise any new contention or fact not raised in his previous
filings. Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir. 1981) (finding harmless error when the
unconsidered objections did not raise a new factual dispute and the district court could “assess
the merits of the petition of the petition from its face” (quotation omitted)). And as explained
below, de novo review shows that Belle’s action was properly dismissed.

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the document on time, and the court received it before the deadline. Belle’s
objection to the report and recommendation was also timely filed. Because both
submissions were filed within the deadline set by the magistrate, problems that
Belle may have encountered with the prison mail room do not affect the
substance of this appeal, and we deny Belle’s motion to supplement as moot.
                           STANDARD OF REVIEW
      We review de novo the dismissal of a complaint under 28 U.S.C. § 1915A.
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). To state a claim upon which
relief may be granted, “the plaintiff must plead enough facts to state a claim to
relief that is plausible on its face.” See In re Katrina Canal Breaches Litig., 495
F.3d 191, 205 (5th Cir. 2007) (internal quotations and citation omitted). “[A]
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal citations omitted). In effect, “[f]actual allegations must
be enough to raise a right to relief above the speculative level.” Id.; see also
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). While pro se complaints are
held to less stringent standards than those drafted by lawyers, “conclusory
allegations or legal conclusions masquerading as factual conclusions will not
prevent a motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378
(5th Cir. 2002) (quotation omitted).
                                 DISCUSSION
      The Constitution requires the states to assure that prisoners have
“meaningful access to the courts.” Bounds v. Smith, 430 U.S. 817, 824 (1977).
Bounds, however, does not allow claims for merely theoretical or potential
violations of a right of access to the courts; to prove a violation, a litigant must
demonstrate that the alleged lack of access “hindered his efforts to pursue a legal
claim.” Lewis v. Casey, 518 U.S. 343, 351 (1996). The Lewis court limited the

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holding in Bounds by disclaiming statements in that case suggesting that the
state “must enable the prisoner to discover grievances, and to litigate effectively
once in court.” Id. (emphases in original). In a subsequent case, the Court
stated that an “access to the courts” claim must identify a “‘nonfrivolous,’
‘arguable’ underlying claim.” Christopher v. Harbury, 536 U.S. 403, 415 (2002)
(quoting Lewis, 518 U.S. at 353 & n.3).
      Belle contends that his ability to bring a habeas petition was limited when
his property bag, which included some legal materials, was lost, misplaced, or
stolen by someone in the sheriff’s department. Though the magistrate hearing
the case gave him several opportunities to do so, Belle did not settle on an
explanation of what he lost. He first described the materials in question as
unspecified legal work, unidentified court records, a motion, and copies of letters
from his attorneys. He did not explain how any of these materials were crucial
to his ability to submit an as-yet-unwritten habeas petition, nor did he claim
that any of the materials were irreplaceable. Belle later amended his complaint
and stated that he lost “jury sheet[] transcripts” that contained facts he needed
to support his habeas claims. It is again not clear what materials Belle was
referring to or how they would have supported his habeas petition. Belle’s
allegations are no more than legal conclusions couched as facts; he did not plead
facts that allowed the district court to find his action plausible on its face. Iqbal,
129 S.Ct. at 1949-50.
      Belle appears to believe, based on his experience with an earlier state
habeas petition, that some facts contained in the lost legal materials would have
made his forthcoming habeas petition more convincing. As an example of the
harm that he believed the loss of his legal materials could cause to the viability
of this habeas petition, Belle attached to his first amended complaint a Texas
state court’s findings of fact and suggested conclusions of law on the earlier
habeas petition. The state court noted that Belle’s “sworn allegations are alone

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insufficient to meet his burden to allege facts which, if true, would entitle him
to relief.”
       Belle appears to believe that he did not succeed on his earlier habeas
petition because he did not provide sufficient factual support for his claims, and
that the same fate will befall his new habeas petition regarding the possession
conviction: it is “possible,” Belle claims, that the petition “could have been
presented” in a more effective manner if he had not been deprived of court
records from which he could have drawn persuasive evidence.
       Belle’s speculations about the possibility that he did not present his claims
as effectively as he could, which may possibly lead to the denial of his habeas
petition, are insufficient to show the predicate harm required by Casey and
Harbury.      Belle did not identify how the loss of any single item from his
collection of legal materials prevented him from persuasively explaining, in his
habeas petition, why he should be granted habeas relief. Casey and Harbury
require a plausible connection between the wrong committed and the injury
suffered. Belle, despite repeated opportunities to do so, did not show such a
connection.
       Most importantly, though, Belle appears to have had no trouble
submitting a voluminous habeas petition to state court. The petition, which
Belle attached to his first amended complaint, does not mention that certain
facts could not be recalled or could not be recounted in detail because he lacked
access to some legal materials. He filed with the state court, along with a copy
of the state-provided “Application for a Writ of Habeas Corpus” form, a 13-page
memorandum of law replete with citations to state and federal cases, a
practitioner’s handbook on evidence, and the Texas criminal code.             Belle
completely filled out the state-provided Application, in which, as directed, he
stated concisely the legal grounds supporting his petition and briefly
summarized the facts supporting each ground for relief. He signed both the

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Application and the memorandum of law on September 20, 2008—after filing
suit in federal court.
      It is apparent that Belle had unimpeded access to the Texas courts. It is
also apparent from the face of his habeas petition, as well as from his filings in
the court below, that Belle had access to a law library.        Any loss of legal
materials in 2007 did not prevent him from filing the habeas petition in 2008.
Belle was able to submit a complete petition that fully complied with the
guidelines set out in the state-provided Application. The materials he attached
to his amended complaint make it clear that whatever setback Belle suffered
when his legal materials were misplaced did not impede his ability to put his
habeas claims before the Texas courts.
      Several unpublished decisions in this circuit dealt with analogous facts
and found no constitutional violation. In Littleton v. Grimes, the court affirmed
the dismissal of a denial-of-access claim in which a prisoner’s legal papers were
confiscated but, despite the confiscation, the prisoner “was able to prepare and
timely submit a lengthy and thorough COA application.” 286 F. App’x 887, 888
(5th Cir. 2008). In Gray v. Williams, a prisoner alleged that his warden’s failure
to return certain documents attached to an administrative appeal denied him
access to the courts. The court affirmed the district court’s rejection of this
theory because the warden’s actions did not prevent the prisoner from filing a
related civil action and appeal. 31 F. App’x 155 (5th Cir. 2001); see also Mann
v. Smith, 796 F.2d 79, 84 (5th Cir. 1986) (rejecting a right-of-access argument
where the prisoner “in fact filed a detailed civil complaint.”). Like the prisoners
in Gray and Littleton, Belle was able to file his habeas petition despite the
alleged setback of losing some legal material related to it.
      In short, Belle’s assertion that a state agent caused the loss of items that
he surmises might have been helpful to his habeas petition does not state an
“access to the courts” claim. Belle’s own submissions show that he enjoyed full

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access to the Texas courts and that he was able to submit a complete habeas
petition containing all of the grounds for relief he claims to have had.
                                CONCLUSION
      The judgment of the district court is AFFIRMED. Belle’s motion to
attach a declaration of facts to his brief is DENIED as moot.




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