*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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

October 17, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-10788

Summary Calendar

 

JOHN J. HINES,

Plaintiff-Appellant,

versus

ROBERT HELMS and

H.M.R. PROPERTIES,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:03-CV-103

 

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

John J. Hines, a prisoner proceeding pro se, appeals the

district court’s dismissal of his civil rights complaint as

frivolous and failing to state a claim on which relief can be

granted. Hines also appeals the district court’s refusal to accept

and review his amended complaint. Hines sued Robert Helms and

H.M.R. Properties pursuant to 42 U.S.C. § 1983. He alleged that
1 28 U.S.C. § 1915(e)(2)(B)(i)-(ii) (1994).

2 Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998).

3 Id.

4 Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). 

2

Helms, his landlord, invaded his privacy by allowing the police to

enter his residence and take his property. He also alleged that

H.M.R. Properties, his employer, denied him back pay and the cost

of a broken tooth. The district court dismissed the complaint with

prejudice because Helms and H.M.R. Properties are not state actors

as required by § 1983. The district court denied Hines’s motion to

amend the complaint, which would have added a state detective as a

defendant. For the following reasons, we AFFIRM.

A district court must dismiss a prisoner’s claim if it is

malicious, frivolous, or fails to state a claim on which relief can

be granted.1 A complaint is frivolous if it lacks an arguable

basis either in law or fact.2 A district court’s dismissal of a

complaint as frivolous is reviewed for an abuse of discretion,3 and

a district court’s dismissal of a complaint for failing to state a

claim is reviewed de novo.4

The judge did not err by dismissing Hines’s original complaint

as frivolous and failing to state a claim. Any action brought

pursuant to § 1983 requires the plaintiff to show a federal-rights

deprivation by a state actor. Hines’s original complaint made no
5 FED. R. CIV. P. 15(a).

6 Id.; see Willis v. Collins, 989 F.2d 187, 189 (5th Cir. 1993)

(noting that a party may amend as of right at any time before being

served with a responsive pleading).

7 See Bazrowx v. Scott, 136 F.3d 1053, 1054-55 (5th Cir. 1998)

(affirming a district court’s dismissal of a pro se plaintiff’s

complaint because any error was harmless).

8 Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986);

Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982) (holding

that “mere conclusory allegations of conspiracy cannot, absent

reference to material facts” state a claim of conspiracy).

3

allegation of state action. Reviewing this dismissal under either

standard of review, the district court did not err.

A party may amend its pleading “once as a matter of course at

any time before a responsive pleading is served.”5 Plaintiff moved

to amend before being served with a responsive pleading. The judge

denied Plaintiff’s Motion to Amend.6 We affirm because any error

that resulted was harmless.7 Plaintiff’s proposed amended

complaint makes only a conclusory allegation of conspiracy between

the defendants and a state actor; it provides no factual basis for

the allegation. This bare allegation of conspiracy does not

suffice to state a claim pursuant to § 1983.8 Accordingly, the

district court’s refusal to accept Plaintiff’s amended pleading was

harmless.

AFFIRMED.