                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 22, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-20938
                         Summary Calendar



JACK L. HENDRICKSON,

                                    Plaintiff-Appellant,

versus

THOMAS A. DAVIS, JR.; LACY ROGERS;
OFFICE OF THE ATTORNEY GENERAL OF TEXAS,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                         (4:04-CV-4133)
                      --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Jack L. Hendrickson, Texas prisoner #

1140046, appeals the district court’s dismissal of his 42 U.S.C. §

1983 civil rights complaint against Colonel Thomas A. Davis, Jr.

(Colonel Davis), Director of the Texas Department of Public Safety

(DPS), and San Jacinto County Sheriff Lacy Rogers (Sheriff Rogers)

for failure to state a claim on which relief may be granted.

     A complaint fails to state a claim on which relief may be

granted if, taking the plaintiff’s allegations as true, he could

     *
       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this opinion should not be published and is not precedent except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.
prove no set of facts in support of his claim that would entitle

him to relief.         Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir.

1999).    We review de novo a dismissal for failure to state a claim

upon which relief may be granted.            Id.

     Hendrickson contends that the district court erred when,

rather than accepting the facts in his complaint as true and

viewing    them   in   the    light   most   favorable   to   him,   the   court

improperly considered the substantive evidence submitted with the

Martinez1 report to resolve disputed issues of fact.

     The district court erred to the extent that it considered the

substantive evidence in the Martinez report to resolve disputed

issues of fact.        See Shabazz v. Askins, 980 F.2d 1333, 1334-35

(10th Cir. 1992).        Any such error was harmless, however, as we

conclude that even accepting Hendrickson’s allegations as true and

resolving all disputed facts in his favor, the district court

properly dismissed his complaint for failure to state a claim.

     Hendrickson also contends that the district court erred when

it determined that he failed to state a claim against Colonel Davis

and Sheriff Rogers.          Hendrickson’s allegations that the officers

involved in the incident were acting under the authority of Colonel

Davis and Sheriff Rogers are insufficient to state a claim against

these two officials.         See Thompkins v. Belt, 828 F.2d 298, 304 (5th

Cir. 1987).       Further,      Hendrickson’s      conclusional   allegations,


     1
          Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).

                                        2
raised for the first time on appeal, that DPS officers are not

trained for dynamic home entry, that Colonel Davis was personally

involved in failing to train the DPS officers, and that Sheriff

Rogers was personally involved by employing untrained DPS officers,

are neither considered nor sufficient to prevent a dismissal for

failure to state a claim.    See Leverette v. Louisville Ladder Co.,

183 F.3d 339, 342 (5th Cir. 1999); Koch v. Puckett, 907 F.2d 524,

530 (5th Cir. 1990); Kane Enters. v. MacGregor (USA) Inc., 322 F.3d

371, 374 (5th Cir. 2003).      The district court did not err in

dismissing   Hendrickson’s   complaint   against   Colonel   Davis   and

Sheriff Rogers.

     AFFIRMED.




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