     Case: 09-20428         Document: 00511117636       Page: 1    Date Filed: 05/20/2010




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

                                                     FILED
                                                                            May 20, 2010
                                        No. 09-20428
                                      Summary Calendar                      Lyle W. Cayce
                                                                                 Clerk



DAVID MICHAEL SHEID,
                                                     Plaintiff-Appellant

v.

UNITED STATES MARSHAL SERVICE, Houston Division; U.S. MARSHAL
NO. 1 JANE DOE, Individually, and in her official capacity; U.S. MARSHAL
NO. 2 JOHN DOE, Individually and in his official capacity,

                                                     Defendants-Appellees


                        Appeal from the United States District Court
                             for the Southern District of Texas
                                  USDC No. 4:08-CV-3295


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
          David Michael Sheid, federal prisoner # 31957-177 and Texas prisoner
# 60673, appeals the dismissal of a Bivens 1 complaint alleging that members of
the United States Marshal’s Service (USMS) prevented him from filing a writ of
certiorari from this court’s denial of a certificate of appealability (COA) to appeal

          *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
          1
              Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
   Case: 09-20428    Document: 00511117636 Page: 2         Date Filed: 05/20/2010
                                 No. 09-20428

the denial of 28 U.S.C. § 2254 relief. Construing the complaint as raising solely
a claim of denial of access to the courts, the district court held that the complaint
failed to state a claim for relief because Sheid could not demonstrate that he was
prejudiced by his inability to file a petition for certiorari. See Christopher v.
Harbury, 536 U.S. 403, 416 (2002).
      Sheid argues that the district court should not have dismissed his
individual capacity claims against the defendant marshals on grounds of
qualified immunity prior to allowing him to conduct discovery and serve the
defendants. He urges that the court failed to address claims of substantive and
procedural process violations alleged in his complaint; that the court should have
considered the substantive constitutional claims raised in the § 2254 petition
rather than basing its prejudice analysis on the fact that the petition was
dismissed as untimely; and that the court improperly considered matters outside
the pleadings when it took judicial notice of the criminal and federal and state
proceedings underlying this lawsuit.
      Any error in the district court’s decision to raise the issue of qualified
immunity on its own motion prior to discovery and service of process is harmless
because the identity of the “Doe” defendants is irrelevant to the determination
that Sheid was not prejudiced by their alleged interference in his ability to file
a petition for certiorari because the issues on which he wished to seek review
were meritless. See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); see
also Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009). The district court did
not fail to address Sheid’s claims of substantive and procedural due process
violations, but it properly held that, accepting those allegations as true, the
complaint failed to state a claim for relief because Sheid was not prejudiced by
the defendants’ actions. See Harbury, 536 U.S. at 415-16. As Sheid does not
explain how the federal habeas court and this court erred in determining that
his § 2254 petition was untimely, his suggestion that the district court’s
assessment of prejudice should have addressed the substantive claims raised in

                                         2
   Case: 09-20428    Document: 00511117636 Page: 3         Date Filed: 05/20/2010
                                 No. 09-20428

the federal petition is meritless. The district did not err by taking judicial notice
of the state and federal proceedings at issue in this lawsuit. See Cunningham
v. District Attorney’s Office, 592 F.3d 1237, 1255 (11th Cir. 2010); Moore v.
Estelle, 526 F.2d 690, 694 (5th Cir. 1976).        Dismissal of the complaint is
AFFIRMED.
      Sheid’s motion for appointment of appellate counsel is DENIED.




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