### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50244 Summary Calendar

TOM JONES, also known as Thomas P. Jones, Plaintiff-Appellant
v. CITY OF AUSTIN; SUSAN SCROGGINS; ROD CHERVENKA, Defendants-Appellees

Appeals from the United States District Court for the Western District of Texas USDC No. 1:10-CV-915

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges. PER CURIAM: * Tom Jones filed a pro se complaint against the City of Austin (the “City”) and two of its employees al l e gi n g violations of the Fifth, Sixth, Eighth, and F o u rt e enth A m e n d m e n t s . Af t e r a d o p t i n g th e m a gi s t r a t e j u d g e ’ s recommendation, the district court dismissed Jones’s complaint with prejudice. We AFFIRM. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Sep tem ber 2 8, 2 011 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-50244 Document: 00511616400 Page: 1 Date Filed: 09/28/2011No. 11-50244 I. Jones was the president and sole stockholder of Tom Jones Homes, Inc. (TJH). In 1995, TJH began buying lots and building homes in Austin Lake Hills Sectio n 2, a Travis County subdivision that lies within the City’s five-mile extraterritorial jurisdictio n . Five years later, TJH contracted to buy an additional group of approximately 36 lots in Austin Lake Hills Section 2, and submitted a Site Development Determination request to the City. According to Jones, the City never responded to his request. Jone s a lleges that the City subsequently required TJH to pave a county street according to municip al s p e cif ic atio n s ; c o n s truct an exp e n s ive u n derground storm sewer system; and rel i nquish some of its residential lots to permit the construction of a large water quality pond. In November 2004, the pond failed during heavy rainstorms. Jones avers that, beginning in 2006, the City began filing “a series of 35 virtually i d e n t i cal criminal charges against [him] for the single a c t o f not maintaining the pool.” In December 2009 and January 2010, Jones was found guilty of two of these charges. On November 29, 2010, Jones filed suit in federal court against the City and two of its employees. In his pro se complaint, Jones appeared to allege the following four constitutional violations: (1) a violation of his Fifth Amendment due process rights resulting from the City’s failure t o r e s pond to his Site Development D e t e r m ination request; (2) an impermissible taking under the Fifth Amendment resulting from the City’s alleged request that TJH relinquish

s o m e of its residential lots; (3) a violation of the Sixth Amendment’s right t o a speedy trial; and (4) an Eighth Amendment violation flowing from the “cruel and unusual punishment” he endured as a result of the many personal problems that were caused by the City’s actions. Approximately two weeks later, the assigned magistrate jud ge recommended dismissal of Jones’s suit. On February 8, 2011, the district court

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adopted the magis tr at e j u d ge ’ s r e c o m m e n d atio n an d di s m i s sed the suit pursuant to 28 U.S.C. § 1915(e)(2)(B). That same day, final judgment was entered against Jones. This appeal followed. II. A. Standard of Review We review dismissal under Section 1915(e)(2)(B)(ii) de novo , applying the

same standard used to review a dismissal under Federal Rule of Civil Procedure 12(b)(6). Black v. Warren , 134 F.3d 732, 733-34 (5th Cir. 1998). U n d e r R ule 12(b)(6), we accept all well-pleaded facts as true and view those facts in the light most favorable to the plaintiff. See Gonzalez v. Kay , 577 F.3d 600, 603 (5th Cir. 2009) (citation omitted). We then examine the factual allegations to ensure that they are “‘enough to raise a right to relief above the speculative level.’” Randall D. Wolcott, M.D., P.A. v. Sebelius , 635 F.3d 757, 763 (5th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly , 55 0 U.S. 544, 555 (2007)). The plaintiff must plead sufficient fact u a l m a t t e r , accepted as true, to state a claim to relief that is plausible on its face. Id. (internal quotation marks and citations omitted). As to dismis s a l pursuant to Section 1915(e)(2)(B)(i), we review a determination by a district court that a case is frivolous for abuse of discretion. Warren , 134 F.3d at 7 3 4. A complaint is frivolous if it lacks an arguable basis in law or fact. Id. “A complaint lacks an arguable basis in law if it is based on

an indisputably meritless legal theory, such as if the complaint alleges violation of a legal interest which clearly does not exist.” Samford v. Dretke , 562 F.3d 674, 678 (5th Cir. 2009) (internal quotation marks and c i t a t i o n s omitted). “A complaint lacks an arguable basis in fact when the facts alleged are fantastic or d e l u s i o n al scenarios or the legal theory upon which a complaint relies i s indisputably meritless.” Id. (internal quotation marks and citation omitted). The magistrate judge’s recommendation and the dis t r i ct court’s order

a c c e p t i ng the recommendation are both silent on the precise basis for th e
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dismissal of Jo n e s ’ s complaint. While both generally mention Section 1915(e)(2)(B), they fail to explicitly mention whether the ba s i s f o r dismissal is romanette (i) or (ii). Given this uncertainty, we will interpret the dismissal as being predicated on both (i) and (ii). Accordingly, the de novo standard of review applies. Samford , 562 F.3d at 678 (“ When a district court dismisses a complaint both as frivolous and as failing to state a claim under §§ 1915(e)(2)(B)(i) & (ii), we review the dismissal de novo.”) (citation omitted). B. Discussion Generously read, Jones’s complaint appears to bring several distinct

c l a ims under 42 U.S.C. § 1983. We consider each discernible argument J o n e s raises on appeal. 1. Due Process The first two arguments raised by Jones involve alleged due process violations. According to him, his due process rights were violated when the City: (1) denied his Site Development Determination request; and (2) denied him his right to appeal a municipal code violation. “The threshold requirement of any due process claim is the government’s deprivation of a plaintiff’s liberty or property interest.” DePree v. Saunders , 588 F.3d 282, 290 (5th Cir. 2009) (citation omitted). Without such an intere s t, no right to due process accrues . I d

. (internal quotation marks and citation omitted). A person’s interest in a benefit is a property interest for due process purposes if there are rules or mutually explicit understandings that support the claim of entitlement to the benefit. Id. (internal quotation marks and citations omitted). “Under this analysis, the ‘hallmark of property

. . . is an individual entitlement grounded in state law, which cannot be removed except for cause.’” Hidden Oaks Ltd. v. City of A u s t in , 138 F.3d 1036, 1046 (5th Cir. 1998) (quoting Logan v. Zimmerman Brush Co. , 455 U.S. 422, 430 (1982 )).

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Jones’s due process claims fail to satisfy this threshold requirement. His bare allegations o f t h e s e two deprivations do not provide a plausible basis for concluding that his due process rights were violated. Because Jones has pointed to no constitutionally cognizable property interest grounded in state law, his due process claims were properly dismissed by the district court. 1 2. Right to Counsel Next, Jones argues that his Six t h A m endment right to counsel was violated when he was denied court-appointed counsel in the district court. 2 “Generally speaking, no right to c o u n sel exists in Section 1983 cases.” Jackson v. Cain , 864 F.2d 1235, 1242 (5th Cir. 1989). “‘The trial c o u r t is not required to appoint counsel for an indigent plaintiff asserting a claim under [Section 1983] unless the case presents exceptional circumstances.” Id. (quoting Ulmer v, Chandler , 691 F.2d 209, 212 (5th Cir. 1982)). “A district court has the discretion to appo i n t counsel if doing so would advance the proper administration of justice.” Id. (citation omitted). We consider various factors in determining whether the trial court’s refusal to appoint counsel amounted to an abuse of discretion: (1) the type and c o m p l e xi t y o f the case; (2) whether the indigent was capable of presenting his case adequately; (3) whether the indigent

was in a position to investigate the case ; a nd (4) whether the evidence would consist in large part of conflicting testimony so as to require skil l i n the

Jones als o ass ert s that his due pr oce ss right s we r e vi o l a t e d w hen the City 1 “unla wf ully convi cte d [him ] in its mun icip al cour ts .” He fai ls, how ever, to ide ntif y the cons tit utio nal err or that too k plac e at thes e pr oce edi ngs. Ac c o r d i n gly, the dis tri ct cour t’s dis mi ss al of this c laimw as pr ope r.

Jones als o argues that Sixth Ame ndm ent right s we r e vi o l a t e d w hen he wa s not 2 grant ed cour t- app oint ed counse l in his mun icip al cour t pr oce edi ngs. Becaus e this argum ent wa s not rais ed in the di s tri ct cour t, it has been wa ived. LeM ai re v. La. De

p’t of Tra nsp . & De v. , 480 F.3d 383, 387 (5t h Cir. 2007) (“ [A] rgum ents not rais ed bef orethe dis tri ct co urtare wa ived and canno t be rais ed fort he fir stt imeonap pea l.” ) (c itat ion om itt ed)

.

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presentation of evidence and in cross examination. Id. (citation omitted). Here, the district court did not abuse its discretion in denying Jones court-appointed counsel. Jones’s ability to investigate and present his case sufficiently supports this conclusion. 3. Speedy Trial Finally, Jones contends that his Sixth Amendment right to a speedy trial

was violated. In support of this argument, he merely notes the number of docket entries in the cases involving him and summarily concludes that his “rights to

a speedy trial were grossly violated” by the City. Given this u ndeveloped presentation, we conclude that this argument has been abandoned on appeal. See Dardar v. Lafourache Realty Co., Inc. , 985 F.2d 824, 831 (5th Cir. 1 993) (“Questions posed for appellate review but inadequately briefed are considered abandoned.”) (citations omitted). While we “liberal l y c o n s true briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than to parties represented by counsel, pro se parties must still brief the issues and reasonably comply with the standards of Rule 28.” Grant v . Cuellar , 59 F.3d 523, 524 (5th Cir. 1995) (citation omitted). III. Finding no error in the district court’s judgment, we AFFIRM. All pending motions are DENIED.

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