                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                                                                                         December 29, 2003
                            UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT
                                                                                      Charles R. Fulbruge III
                                                                                              Clerk
                                   _________________________

                                         No. 03 - 10787
                                     SUMMARY CALENDAR
                                   _________________________

LORENZO JUAREZ,

                       Plaintiff - Appellant,

   v.

LINDA A. SHORT, Mailroom Supervisor;
CANDID A. RAY, Mailroom Clerk 3;
JOE S. NUNN, Assistant Warden,

                       Defendants - Appellees.

______________________________________________________________________________

                 On Appeal from the United States District Court for the
                              Northern District of Texas
                                    (2:03-CV-73)
______________________________________________________________________________

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

        In this appeal we review the district court's decision to dismiss Plaintiff - Appellant,

Lorenzo Juarez’s (hereinafter, “Juarez”), 42 U.S.C. § 1983 civil rights complaint. For the

following reasons, we affirm the district court’s decision.



        1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.

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                                                   I.

                       FACTUAL AND PROCEDURAL BACKGROUND

       Juarez filed this suit in response to incidents regarding his prison mail that occurred while

he was incarcerated. In June 2002, Juarez attempted to mail a letter to his sister, Guadalupe

Alvarado (hereinafter, “Alvarado”), but the letter was intercepted by Defendant - Appellees

(hereinafter, “Prison Officials”) who determined Juarez was using a contraband envelope and

refused to mail the letter. In accordance with prison procedure, Juarez voluntarily signed a

correspondence/contraband denial form in which he acknowledged that his letter was not mailed

because he was “trafficking and trading” in contraband.

       Juarez was convicted of violating prison rules by trafficking and trading in contraband and

received ten days’ recreation restriction. Juarez did not appeal the conviction.

       Juarez later received a Christmas card from Alvarado in which she told him that she had

received a letter from prison officials informing her that she had “lost her right or privilege to

write” to Juarez. Juarez then filed several request and grievance forms in an attempt to ascertain

why his sister had been prevented from writing to him. Prison Officials admitted sending

Alvarado a copy of the correspondence/contraband denial form signed by Juarez, but denied that

Alvarado had been told that she could not write to Juarez, or that Alvarado had been placed on

Juarez’s negative mailing list.

       Juarez was not satisfied with the explanation and filed this § 1983 suit seeking injunctive

and pecuniary relief. Juarez moved the court for permission to proceed in forma pauperis, and he

also moved for the appointment of counsel to assist him in his case. The district court dismissed


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the suit sua sponte as frivolous pursuant to 28 U.S.C. § 1915A(b)(1).

        The district court determined that the substance of Juarez’s complaint was in regards to

the process used to intercept the letter to his sister. The court noted that this issue had already

been decided in Juarez’s conviction for violating prison rules.

        The district court interpreted Juarez’s claims against the mailroom staff as an assertion

that the correspondence/contraband denial form was constitutionally defective. The court found

that Juarez had not shown such a defect and, in addition, that the mailroom staff had no part in

drafting the form and had no duty to investigate Juarez’s grievance. The court also noted that the

correspondence/contraband denial form signed by Juarez contains a list of people who will receive

copies of the form, and that the addressee is one of these people. Thus, Juarez should have

known Alvarado would receive a copy of the form.

        Finally, the district court found that Prison Officials had not interfered with Juarez’s right

to correspond with his sister, and that Alvarado had merely been confused by the form. Thus, the

district court dismissed the suit as frivolous. Juarez timely appealed.

                                                  II.

                                             DISMISSAL

        Juarez argues that the district court was not authorized to dismiss his complaint because:

(1) he was proceeding in forma pauperis and paid the filing fee; (2) Prison Officials violated his

First Amendment rights by sending the correspondence/contraband denial form to his sister,

leading her to believe that she could not write to him; and (3) the correspondence/contraband

denial form inaccurately describes his letter as planning activities in violation of prison regulations.

        We review the district court’s decision to dismiss a complaint pursuant to § 1915A for an


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abuse of discretion. Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). The district court abuses

its discretion when it bases its decision on an erroneous view of the law or on a clearly erroneous

assessment of the evidence. Esmark Apparel, Inc. v. James, 10 F.3d 1156, 1163 (5th Cir. 1994).

        District courts are instructed to review prisoner complaints and to dismiss them if they are

frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. §

1915A(b)(1). A complaint is frivolous if it lacks an arguable basis in law or fact, such as when a

prisoner alleges the violation of a legal interest that does not exist. Martin, 156 F.3d at 580.

       Juarez has failed to show that the district court abused its discretion in dismissing his suit.

Juarez argues that Prison Officials violated his rights by failing to mail his June 2002 letter, but he

has already been convicted of possessing a contraband envelope, which was the reason his letter

was not mailed. Juarez did not appeal this conviction, nor does he argue that it has been

overturned. He cannot recover damages pursuant to § 1983 for an allegedly unconstitutional

conviction or sentence unless he proves that the conviction has been reversed on appeal,

expunged by executive order, declared invalid, or called into question by a federal court’s ruling.

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). This includes disciplinary convictions.

Edwards v. Balisok, 520 U.S. 641, 646-48 (1997). Thus, the district court was correct in

determining that this portion of Juarez’s claim should be dismissed.

       Juarez also argues that prison officials violated his First Amendment rights by prohibiting

his sister from writing to him. While Juarez does have certain First Amendment rights in relation

to his personal mail, the record does not reflect that Prison Officials interfered with Juarez’s right

to receive mail. Juarez admits that his sister was merely confused by the copy of the

correspondence/contraband denial form she received. The form does not indicate in any way that


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Alvarado is forbidden from writing Juarez. It merely indicates that a letter from Juarez to

Alvarado will not be mailed. Juarez has failed to show that his First Amendment rights have been

violated, and the district court correctly dismissed this claim.

       Finally, Juarez argues that the correspondence/contraband denial form incorrectly

indicates that he attempted to send a letter containing plans to violate prison rules. Though the

form may be worded badly, it clearly indicates that Juarez’s mail was intercepted because of

trafficking and trading in contraband. Juarez’s claims are without merit. The district court did

not abuse its discretion in dismissing Juarez’s complaint pursuant to 28 U.S.C. § 1915A(b)(1).

                                                  III.

                                     QUALIFIED IMMUNITY

       Juarez argues that Prison Officials are not entitled to qualified immunity, and that because

the district court dismissed his suit on these grounds, we should reverse the decision. Juarez is

mistaken though, as the district court’s dismissal of his complaint was based wholly on its

determination that Juarez’s claims are frivolous. Because the defense of qualified immunity had

no bearing on the district court’s decision, we decline to consider it here.

                                                  IV.

                                 APPOINTMENT OF COUNSEL

       Juarez further argues that the district court erred in denying his motion for appointment of

counsel. We review the district court’s decision for an abuse of discretion. Cupit v. Jones, 835

F.2d 82, 86 (5th Cir. 1987).

       In the absence of exceptional circumstances, the district court is not required to appoint

counsel for an indigent plaintiff raising a § 1983 claim. Ulmer v. Chancellor, 691 F.2d 209, 212


                                                  -5-
(5th Cir. 1982). In determining whether there are exceptional circumstances meriting the

appointment of counsel, the district court considers: (1) the type and complexity of the case; (2)

the plaintiff’s ability to present the case adequately; (3) the plaintiff’s ability to investigate his case

adequately; and (4) the type of evidence that will be presented by both parties. Id. at 213.

        Juarez’s only arguments for appointment of counsel are that he is indigent and ignorant of

the law. He has not shown that this is a particularly complex case, and more importantly, Juarez’s

problem is not with the presentment of his case, but with the merits of the case itself. There is no

evidence that the claims would not have been dismissed if they had been brought by an

experienced attorney instead of Juarez. The district court did not abuse its discretion in denying

Juarez’s motion for appointment of counsel.

                                                    V.

                     DISMISSAL WITHOUT AMENDMENT OR HEARING

        Finally, Juarez argues that the district court erred by dismissing his complaint without

giving him an opportunity to file an amended complaint, and without holding a hearing. 28

U.S.C. § 1915A(b)(1) instructs the district court to review complaints, before docketing if

feasible, and to dismiss them if they are frivolous, malicious, or fail to state a claim upon which

relief may be granted. There is no requirement that the district court allow the plaintiff to amend

his complaint, or that the district court hold a hearing prior to dismissing a frivolous complaint.

The district court did not abuse its discretion by dismissing Juarez’s complaint.

                                                   VI.

                                            CONCLUSION

        For the foregoing reasons, we affirm the district court’s decision.


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