*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-10190

Summary Calendar

_____________________

DAVID CHASE BOYD,

Plaintiff-Appellant,

v.

GLORIA WEST, Individually

and in her Official Capacity as

District Clerk of Knox County, Texas,

Defendant-Appellee.

_________________________________________________________________

Appeals from the United States District Court

for the Northern District of Texas

(7-94-CV-046-X) 

_________________________________________________________________

(July 20, 1995)

Before KING, JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

David C. Boyd, a Texas state prisoner proceeding pro se and

in forma pauperis, filed a civil rights action pursuant to 42

U.S.C. § 1983 against Gloria West, the district clerk of Knox

County, Texas, in both her individual and official capacities,

for alleged infringement of his constitutional right to access to
2

the courts. The district court dismissed Boyd's suit as legally

frivolous pursuant to 28 U.S.C. § 1915(d). We affirm.

 

I. FACTUAL AND PROCEDURAL BACKGROUND

Boyd alleges that his right of access to the courts was

infringed because West "refused to process [his first habeas

corpus] application, and either personally destroyed or caused to

be destroyed the said application." Furthermore, Boyd alleged

that West "refused to process or cause the processing of [Boyd's]

said (second) [habeas corpus] application, by refusing to cause a

copy of the [second] application to be served upon the District

Attorney for Knox County, Texas, and/or has caused an inordinate

delay in causing such processing." Both parties moved for

summary judgment. In support of her motion for summary judgment,

West filed an affidavit in which she stated that Boyd's first

petition for a writ of habeas corpus was the "first Post-Trial

Application for a Writ of Habeas Corpus that had been filed in

Knox County since I took over as District Clerk in 1979," and

that she "did not know what to do with the Application rather

than to file it." She further averred that she called the "Court

Coordinator for the Judge of the 50th Judicial District," who

advised her to send the application to the District Attorney's

office and to the state district judge but that "[a]t no time did

[the court coordinator] or anyone else instruct me that after a

certain passage of time, the Writ should be filed in the Court of

Criminal Appeals in Austin, Texas."
3

On January 30, 1995, the district court sua sponte

dismissed, without prejudice, Boyd's complaint as frivolous

pursuant to 28 U.S.C. § 1915(d). Boyd filed a timely appeal to

this court.

II. ANALYSIS

A § 1983 plaintiff who proceeds in forma pauperis is subject

to dismissal if his complaint is "frivolous" within the meaning

of 28 U.S.C. § 1915(d). Under § 1915(d), a complaint is

frivolous if "it lacks an arguable basis in either law or fact." 

Denton v. Hernandez, 112 S. Ct. 1728, 1733 (1992); Neitzke v.

Williams, 490 U.S. 319, 325 (1989). A complaint is legally

frivolous if it is premised on an "indisputably meritless legal

theory . . . ." Neitzke, 490 U.S. at 327. Thus, a complaint that

raises an arguable question of law may not be dismissed under §

1915(d). Id. at 328.

We review a § 1915(d) dismissal for an abuse of discretion

because a determination of frivolousness-- whether legal or

factual-- is a discretionary one. Denton, 112 S. Ct. at 1734;

Moore v. Mabus, 976 F.2d 268, 270 (5th Cir. 1992). In reviewing

for an abuse of discretion, we consider whether (1) the plaintiff

is proceeding pro se, (2) the court inappropriately resolved

genuine issues of disputed fact, (3) the court applied erroneous

legal conclusions, (4) the court has provided an adequate

statement of reasons for dismissal which facilitates intelligent
4

appellate review, and (5) the dismissal was with or without

prejudice. Denton, 112 S. Ct. at 1734. 

In the case at hand, the district court concluded that "the

[p]laintiff's § 1983 Complaint does not give rise to a legally

sufficient cause of action at this point in time because it

implicates and calls into question the fact of his confinement." 

In support of this conclusion, the district court cited Heck v.

Humphrey, 114 S. Ct. 2364, 2372 (1994), which held that, in order

to maintain a § 1983 cause of action based upon "harm caused by

actions whose lawfulness would render a conviction or sentence

invalid," the plaintiff must first demonstrate that his

conviction or sentence has been "reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by

a federal court's issuance of a writ of habeas corpus." Id. at

2372. 

Boyd's complaint alleged that West violated his

constitutional right of access to the courts by deliberately

delaying the processing of his first and second petitions for a

writ of habeas corpus. We have held that such deliberate delay

may constitute a constitutional deprivation. Jackson v.

Procunier, 789 F.2d 307, 311 (5th Cir. 1986). The district

court, however, determined that Heck mandated dismissal because

"[p]laintiff's § 1983 claim . . . implicates the fact of his

confinement since a necessary threshold determination for the

Court would be whether Plaintiff was prejudiced in any legal
5

proceeding by Defendant's failure to properly process his writs,

i.e., whether there was any injury from the alleged deprivation

of constitutional rights." 

Boyd argues that the district court's conclusion is

erroneous because his § 1983 complaint against West does not

question the fact or duration of his continued confinement. He

asserts that even if he was successful in his § 1983 suit, it

would not affect his underlying conviction but would merely

provide him with monetary and injunctive relief for West's

failure to process his first and second writs of habeas corpus in

a reasonably expeditious manner. 

We need not decide this issue at this time. Even assuming

arguendo that Heck does not mandate dismissal of Boyd's claim,

Boyd's claim is legally frivolous because Boyd has failed to

allege sufficient injury or prejudice flowing from West's

actions. We have specifically held that a delay in processing a

prisoner's mail will not offend the Constitution if the prisoner

cannot show that the delay resulted in legal prejudice to the

prisoner. Richardson v. McDonnell, 841 F.2d 120, 122 (5th Cir.

1988). In Richardson, a prisoner filed a § 1983 suit alleging

that prison officials violated his constitutional right to access

to the courts by intentionally or negligently destroying or

losing two petitions for a writ of habeas corpus. Id. at 121. 

We concluded that "the isolated incident complained of by

Richardson does not give rise to a constitutional violation

because the prison's error was noted in time to permit appellant
 

1 Because Boyd's second petition has now been appropriately

processed by West, Boyd's request for injunctive relief is moot.

6

to re-prepare and timely file his writ application." Id. at 122. 

Thus, Richardson's access to the courts was not impeded. Id. 

In the case at hand, Boyd admits that he asked West to

withdraw his first petition for a writ of habeas corpus on

November 3, 1993. Thus, Boyd clearly cannot show any prejudice

from the delayed processing of his first petition. With regard

to Boyd's second petition, West's uncontested affidavit states

that it was received by West on January 18, 1994. The affidavit

further states that West forwarded the second petition to the

Knox County District Attorney's office the same day as it was

received and that it was forwarded to the Court of Criminal

Appeals on June 30, 1994.1

In short, Boyd's second writ was not forwarded to the Court

of Criminal Appeals for approximately six months. While a delay

in processing of this duration bespeaks neither competence or

professionalism, under the facts of this case the delay does not

give rise to a cognizable constitutional injury because Boyd has

proffered no evidence that the delay has prejudiced his ability

to fully pursue his second petition for a writ of habeas corpus. 

Id. Moreover, while the delay in this case is significantly

longer than the delay in Richardson -- approximately six months

here versus approximately two weeks in Richardson -- this does

not alter our conclusion. The essence of our holding in

Richardson, which is limited to the narrow issue of the
 

2 As Boyd does not raise the issue on appeal, we express no

opinion as to whether a protracted delay in the processing of

legal papers by a court clerk could state a cognizable claim for

the denial of due process even assuming arguendo that the

plaintiff has successfully refiled his suit without legal

prejudice. 

7

constitutional right of access to the courts, is that there is no

cognizable constitutional claim of denial of access to the courts

if the plaintiff cannot demonstrate that the defendant's actions

impeded his ability to pursue his legal rights, at least where

those actions have not resulted in significant delay.2 In this

case, the evidence indicates that Boyd's second petition was

forwarded to the Court of Criminal Appeals approximately six

months after it was received by West and is currently pending in

the Texas state courts. Accordingly, Boyd's complaint raises no

arguable legal basis for recovery, see Neitzke, 490 U.S. at 327,

and the district court did not err in dismissing Boyd's complaint

as legally frivolous pursuant to 28 U.S.C. § 1915(d). 

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.