566 F2d 529 Clary v. United States

566 F.2d 529

Johnny Roy CLARY, Plaintiff-Appellant,
v.
UNITED STATES of America and Joe Dean Segler, Defendants-Appellees.

No. 77-2741

Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Jan. 19, 1978.

Johnny Roy Clary, pro se.

Jamie C. Boyd, U. S. Atty., Rebecca D. Westfall, El Paso, Tex., Henry Valdespino, Le Roy Morgan Jahn, Asst. U. S. Attys., San Antonio, Tex., Richard Prinz, Houston, Tex., for Joe Dean Segler.

Appeal from the United States District Court for the Western District of Texas.

Before COLEMAN, GODBOLD and TJOFLAT, Circuit Judges.

PER CURIAM.

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1

Clary, a federal prisoner convicted of mail truck theft, brought suit to recover confiscated property, some of which had been used at his trial. He amended his complaint to include claims for damages against two postal inspectors and the informant involved in the case, alleging that their activities had been the cause of his mother's death. The district court dismissed the action with prejudice, finding that:

2

(1) Clary had failed to exhaust administrative remedies on his recovery of property claim; and

3

(2) The negligence claims were frivolous.

4

We agree that the negligence claims were properly dismissed with prejudice. We vacate as to the property claim and remand it so that the dismissal may be without prejudice for Clary to exhaust his administrative remedies on this issue.

5

AFFIRMED in part, VACATED and REMANDED in part.

*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I