IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20627

Summary Calendar

JASON HENDERSHOTT,

Plaintiff-Appellant

v.

WARDEN KELLY STRONG; WARDEN C. PANSY; WARDEN DAGEL; 

WARDEN J. SHELLY; WARDEN J. RODRIGUEZ; WARDEN WATSON; 

WARDEN V. LONG; WARDEN H. ORTIZ,

Defendants-Appellees

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:14-CV-3123

Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges. 

PER CURIAM:*

Jason Hendershott, Texas prisoner # 1659369, appeals the district 

court’s sua sponte dismissal of his 42 U.S.C. § 1983 civil rights action under 28 

U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a claim on which 

relief could be granted. In his § 1983 complaint, Hendershott alleged the denial 

of his right to access the courts in order to pursue a federal habeas action 

 

* 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

February 13, 2019

Lyle W. Cayce

Clerk

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challenging his convictions of eight counts of aggravated sexual assault of a 

child, two counts of aggravated kidnapping, and two counts of indecency with 

a child. His motion to supplement his brief with additional case law is 

GRANTED; his motions for the appointment of appellate counsel and to strike 

the appellees’ brief are DENIED.

We review the district court’s dismissal de novo. See Geiger v. Jowers, 

404 F.3d 371, 373 (5th Cir. 2005). Hendershott’s § 1983 complaint was not 

time barred, see Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir. 1995), 

but he has not shown that the district court erred in determining that his 

complaint was frivolous or failed to state a claim because he has failed to show 

that he suffered actual harm. See Lewis v. Casey, 518 U.S. 343, 349-54 (1996).

The one-year limitation period for Hendershott to file a timely § 2254 

application expired before his legal materials were allegedly taken from him. 

See 28 U.S.C. § 2244(d); Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 

1998); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000). Although he contends 

that a prior attempt at a § 2254 application was never received by the district 

court, he does not allege any facts demonstrating that the earlier § 2254 

application failed to reach its destination due to the actions, intentional or 

otherwise, of any of the defendants, and thus, he has not shown that the loss 

of his mail denied him access to the courts. See Brewer v. Wilkinson, 3 F.3d 

816, 821 (5th Cir. 1993).

Additionally, to the extent that Hendershott contends that the 

limitations period should have been equitably tolled due to the loss of this 

earlier application, Hendershott has not shown that the loss prevented him 

from filing another § 2254 application before his legal materials were allegedly 

taken from him. See Holland v. Florida, 560 U.S. 631, 649 (2010). Hendershott 

also contends that other events, including a knee surgery in March 2014 and 

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trips to a hospital and mental facility, interfered with his ability to prepare his 

second § 2254 application. However, he has not provided sufficient details to 

state a claim that he experienced more than brief periods of incapacity or that 

these periods warranted equitable tolling. See Gentilello v. Rege, 627 F.3d 540, 

544 (5th Cir. 2010); Roberts v. Cockrell, 319 F.3d 690, 695 (5th Cir. 2003); 

Fisher v. Johnson, 174 F.3d 710, 713-15 (5th Cir. 1999). 

If liberally construed, Hendershott’s appellate filings also argue that he 

is actually innocent. However, his legal claims challenging the offenses 

charged and the constitutionality of the statute do not demonstrate actual 

innocence in this context. See Bousley v. United States, 523 U.S. 614, 623-24 

(1998). Moreover, none of the evidence that Hendershott alleges was 

confiscated from him is sufficient to establish that no reasonable factfinder 

would have found him guilty beyond a reasonable doubt. See McQuiggin v. 

Perkins, 569 U.S. 383, 386 (2013).

Because Hendershott has not shown that the defendants’ actions 

prevented him from filing a § 2254 application that would not have been 

dismissed as time barred, he has not demonstrated the actual harm necessary 

to show that any relief could be granted on his access-to-the-courts claims 

based on his alleged facts or that his claims had an arguable basis in law or 

fact. See Lewis, 518 U.S. at 349-54; see also Sojourner T v. Edwards, 974 F.2d 

27, 30 (5th Cir. 1992) (noting that we can “affirm the district court’s judgment 

on any grounds supported by the record”). Additionally, he has not shown that 

the district court abused its discretion in denying his motions to appoint 

counsel and to compel discovery. See Baranowski v. Hart, 486 F.3d 112, 126 

(5th Cir. 2007); Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir. 

2000). Accordingly, the district court’s judgment is AFFIRMED. 

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