                                                                                          United States Court of Appeals
                                                                                                   Fifth Circuit
                                                                                                F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                                  July 14, 2006
                                   FOR THE FIFTH CIRCUIT
                                                                                            Charles R. Fulbruge III
                                                                                                    Clerk


                                            No. 05-50584
                                          Summary Calendar



JOSE RENE HERNANDEZ,

                                                                                          Plaintiff-Appellant,

                                                 versus

MARGARITA ARELLANO, Individually;
JULIE BETH TODARO; ROBERTA
IVY SHAFFER, Individually;
MARY LYNN RICE-LIVELY, Individually;
JOHN DOE, Graduate Student;
 MARGARET ANN YACKEY, Graduate Student;
 PETER LARSEN, Graduate Student;
AMY FILIATREAU, Graduate Student;
A. J. JOHNSON, Graduate Student,

                                                                                    Defendants-
                                                          Appellees.

                    ------------------------------------------------------------------
                           Appeal from the United States District Court
                                  for the Western District of Texas
                                       USDC No. 1:03-CV-317
                    -------------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*




       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       Jose Rene Hernandez filed an action under 42 U.S.C. §§ 1983 and 1985 against current and

former administrators and students of the University of Texas arising from their alleged conspiracy

to interfere with the proper functioning of his university e-mail account because of his nationality.

The district court granted the defendants’ motion to dismiss the claims under Federal Rule of Civil

Procedure 12(b)(6). The court also denied Hernandez’s motions for appointment of counsel, for

leave to file a second amended complaint, for sanctions against defense counsel, and to disqualify the

magistrate judge.

       Hernandez asserts that the district court erred in granting the defendants’ motion to dismiss

his First Amendment claims. Hernandez claimed that the defendants violated his rights under the First

Amendment by “violating” his e-mail account in a way that restricted his access to his graduate

program’s listserv. He conceded in the amended complaint that he did not know who made the

alleged change to his email account or how it was done. The conclusory allegations do not state a

claim for relief. See Chiras v. Miller, 432 F.3d 606, 611 (5th Cir. 2005).

       Next Hernandez asserts that the district court erred by denying his motion for leave to file a

second amended complaint after the magistrate judge determined that his case should be dismissed.

The district court denied the motion on the basis that Hernandez had failed to take advantage of a

previous opportunity to amend his complaint. The court did not abuse its discretion. See Quintanilla

v. Texas Television Inc., 139 F.3d 494, 499 (5th Cir. 1998).

       Hernandez also argues that the district court erred in refusing to appoint counsel. The district

court considered each of the four factors listed in Jackson v. Dallas Police Department, 811 F.2d

260, 261-62 (5th Cir. 1986), for determining whether appointment of counsel is appropriate. It

concluded (1) the case was not complex; (2) Hernandez had not shown he was unable to present his

claims; (3) he seemed capable of understanding the federal rules governing discovery; and (4) he
failed to show that the case would present a large amount of conflicting testimony, and his admission

into graduate school reflected his intellectual abilities. Accordingly, the court did not abuse its

discretion. See id.

       Next Hernandez asserts that the district court erred in failing to order the magistrate judge

to answer Hernandez’s motion to disqualify him. This issue is frivolous; there is no requirement that

the magistrate judge respond to a motion for disqualification. See 28 U.S.C. § 455; Liteky v. United

States, 510 U.S. 540, 541-56 (1994). Moreover, the district court ruled on the motion.

       In addition, Hernandez argues that the district court abused its discretion in denying his

motion for sanctions against the defense attorneys under Rule 11. He asserts that the court erred in

failing to investigate and adequately explain whether sanctions were proper. Due to the nature of the

outlandish accusations in Hernandez’s motion, the district court did not abuse its discretion. See

Friends for Am. Free Enter. Ass’n v. Wal-Mart, 284 F.3d 575, 577-78 (5th Cir. 2002).

       Finally, Hernandez asserts two other issues in the Statement of Issues in his brief that he does

not include in the body of the brief: that the district court erred in failing to consider documents

attached to his complaint in ruling on the 12(b)(6) motion and that the court erred in limiting

discovery and failing to supervise a pre-trial conference. Hernandez waived these issues by his failure

to brief them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

       AFFIRMED.




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