                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                        F I L E D
                           UNITED STATES COURT OF APPEALS
                                                        March 23, 2006
                                         FIFTH CIRCUIT
                                                                    Charles R. Fulbruge III
                                                                            Clerk
                                       _________________

                                          No. 04-61064
                                       (Summary Calendar)
                                       _________________

TROY WADE,

                               Plaintiff-Appellant,

versus

CHRISTOPHER EPPS, ETC.; ET AL.,

                               Defendants,

LEE SIMON, Lieutenant, Correctional Supervisor, Unit 24,

                               Defendant-Appellee.


                           Appeal from the United States District Court
                             For the Northern District of Mississippi
                                   USDC No. 4:03-CV-00323


Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

         Troy Wade, a Mississippi state prisoner, sued Lieutenant Lee Simon, a correctional

supervisor, in federal district court asserting that Simon improperly confiscated a television that he

had received by notarized transfer from another inmate.1 The district court construed his complaint

         *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
         Wade also sued Christopher Epps, the Commissioner of Corrections. After conducting a
Spears hearing, the district court dismissed the complaint against Epps, asserting that a superior
as asserting a claim under 42 U.S.C. § 1983 and alleging a violation of his right to due process.2

        Simon filed a motion to dismiss or for summary judgment, arguing that: (1) prison regulations

forbade “giving money or anything of value to (or accepting money or anything of value from)

another inmate, a member of his family or any other person without prior written approval”; (2)

Wade’s only proof of ownership of the television was a document notarized by the prison law library

technician stating that another inmate had given Wade a television; (3) the technician did not have

the authority to approve a transfer; and (4) Correctional Staff confiscated Wade’s television because

he could not produce documentary proof of prior written approval. Upon consideration of the

motion and Wade’s opposition, the magistrate judge recommended that the complaint be dismissed

because, inter alia, the transfer did not have prior written approval.3

        Wade filed written objections to the magistrate judge’s recommendation of dismissal. He

argued that the transfer of the television “was not contested by the Correctional Staff who called [the]

Law Library Technician . . . on said day to come to Unit 31 and not[a]rize the transfer” and that



cannot be held liable for the actions of a subordinate under Monell v. Dept. of Social Servs., 436 U.S.
658, 694 (1978). Wade did not timely appeal this dismissal.
        2
           To state a claim under 42 U.S.C. § 1983, a plaintiff must show the depravation of a
constitutional right by a person acting under color of state law. Briscoe v. LaHue, 460 U.S. 325,
329-30 (1983). Here, Wade alleges that his property was taken without due process of law. See
Zinermon v. Burch, 494 U.S. 113, 125 (1990) (“In procedural due process claims, the deprivation
by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself
unconstitutional; what is unconstitutional is the deprivation of such an interest without due process
of law.”); Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982) (“The hallmark of
property . . . is an individual entitlement grounded in state law, which cannot be removed except ‘for
cause.’ ”).
        3
         There is some question as to whether the television listed as non-allowable property on
Simon’s incident report is the same as that seized from Wade. There is no dispute, however, that
Correctional Staff confiscated a television from Wade.

                                                  -2-
“Correctional Staff knew of the transfer for three (3) years before confiscating the . . . television.”

He also claimed that he did not receive a Rules Violation Report (“RVR”) or a “non-allowable items

receipt” for possession of contraband.

        Stating that Wade had not filed objections to the report, the district court adopted the

magistrate judge’s recommendation and granted Simon’s motion for summary judgment. Wade filed

a “Petition for Writ of Objection to Final Judgment” asserting that he had filed objections. The court

construed Wade’s filing as a motion for reconsideration, which it denied despite acknowledging that

Wade had, in fact, filed timely objections.

        Wade appeals the denial of his motion for reconsideration. We review the denial of a Rule

60(b) motion for abuse of discretion. Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002). Under

this standard, “[i]t is not enough that the granting of relief might have been permissible, or even

warranted—denial must have been so unwarranted as to constitute an abuse of discretion.” Williams

v. Brown & Root, Inc., 828 F.2d 325, 328 (5th Cir. 1987) (citation omitted). “We examine only the

trial judge’s action in denying [the] motion; we cannot extend our review to the underlying merits of

[the] case.” Trinity Carton Co., Inc. v. Falstaff Brewing Corp., 816 F.2d 1066, 1070 (5th Cir. 1987).

        The district court granted summary judgment and dismissed the case concluding that Wade

had not received written approval before obtaining the television. Although the district court erred

when it initially found that Wade had not filed objections to this report, it did not abuse its discretion

in denying his motion to reconsider. Nowhere in his pleadings, including his objections, does Wade

assert that he received written permission prior to obtaining the television. Furthermore, the only

record evidence of the transfer is a notarized document, prepared by inmates, recording an inmate-to-

inmate exchange. Notarization, however, is not written approval.


                                                   -3-
       The district court’s rejection of Wade’s motion for reconsideration was not an abuse of

discretion because he failed to demonstrate any error of law or fact establishing that dismissal was

completely unwarranted. Accordingly, we AFFIRM.




                                                -4-
