Johnny Lewis v. Rick Thaler, Director, et al

Filing

REVISED UNPUBLISHED OPINION FILED. [6577429-2] [09-10993]

Johnny Lewis v. Rick Thaler, Director, et al Case: 09-10993 Document: 00511316660

Page: 1 Date Filed: 12/09/2010

Doc. 0

REVISED December 9, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit

N o . 09-10993 S u m m a r y Calendar

FILED
July 9, 2010 Lyle W. Cayce Clerk

J O H N N Y DEWAYNE LEWIS,

P la in t if f -A p p e lla n t v. R IC K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, C O R R E C T I O N A L INSTITUTIONS DIVISION; WARDEN NFN MCKENNON; N F N BURDETT, Assistant Warden; CELESTE BYRNE, Private Contract M o n it o r in g ; BOBBY LUMKIN, Deputy Director of Operations; NFN OWENS; N F N MORALES; D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:09-CV-508

B e fo r e BENAVIDES, PRADO and SOUTHWICK, Circuit Judges. P E R CURIAM:* J o h n n y Dewayne Lewis, Texas inmate # 1558124, appeals the sua sponte d is m is s a l of his pro se informa pauperis (IFP) 42 U.S.C. § 1983 claim for denial o f access to courts and seizure of personal mail for failure to state a claim upon

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Dockets.Justia.com

Case: 09-10993 Document: 00511316660 Page: 2 Date Filed: 12/09/2010 No. 09-10993 w h ic h relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Lewis filed s u it against the director of the Texas Department of Criminal Justice as well as s e v e r a l other prison officials. He also moves this court for injunctions pending a p p e a l. A dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim upon which r e lie f may be granted is reviewed under the same de novo standard as a d is m is s a l under Federal Rule of Civil Procedure 12(b)(6). Black v. Warren, 134 F .3 d 732, 733-34 (5th Cir. 1998). "The complaint must be liberally construed, w it h all reasonable inferences drawn in the light most favorable to the plaintiff." Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005). "To survive a motion to d is m is s , a complaint must contain sufficient factual matter, accepted as true, to `s ta t e a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1 9 3 7 , 1949 (2009) (citation omitted). P r is o n e r s have a constitutional right to access the courts. Bounds v. S m ith , 430 U.S. 817, 821 (1977). However, "Bounds did not create an abstract, fr e e s t a n d in g right to a law library or legal assistance." See Lewis v. Casey, 518 U .S . 343, 351-52 (1996). To prevail on a claim of denial of access to courts, a p r i s o n e r must show actual injury. Id. at 349-52. Lewis's claims that he was d e n ie d access to courts because prison officials denied him legal envelopes and a ls o failed to send out his legal mail are without merit. Specifically, his failure t o allege that he suffered an actual injury is fatal to his "denial of access to c o u r ts " claim. Id. at 349-52. Thus, the district court did not err by dismissing t h is claim for failure to state a claim upon which relief may be granted. Additionally, Lewis's claim that his First Amendment rights were violated b e c a u s e prison officials seized and destroyed a personal incoming letter is lik e w is e without merit. In particular, because Lewis failed to identify any error in the district court's analysis regarding this claim, it is as if he had not a p p e a le d the judgment. See Brinkmann v. Dallas County Deputy Sheriff Abner, 8 1 3 F.2d 744, 748 (5th Cir. 1987). Although pro se briefs are afforded liberal 2

Case: 09-10993 Document: 00511316660 Page: 3 Date Filed: 12/09/2010 No. 09-10993 c o n s t r u c t i o n , even pro se litigants must brief arguments in order to preserve t h e m . Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Because Lewis has n o t addressed the district court's determination that this claim should be d is m is s e d for failure to state a claim, he has abandoned this issue. See B r in k m a n n , 813 F.2d at 748; Yohey, 985 F.2d at 224-25. Lewis has requested injunctions ordering prison officials to provide him w it h copies of "legal papers" and to provide him with access to courts. To obtain a preliminary injunction, movant must establish: (1) a substantial likelihood of s u c c e s s on the merits, (2) a substantial threat that failure to grant the injunction w ill result in irreparable injury, (3) that the threatened injury outweighs any d a m a g e that the injunction may cause the opposing party, and (4) that the in ju n c t io n will not serve the public interest. See FED. R. APP. P. 8; United States v . Baylor University Med. Ctr., 711 F.2d 38, 39 (5th Cir. 1983). Lewis fails to m a k e the requisite showing; therefore, his motions for injunction pending appeal a r e denied. F in a lly , the district court's dismissal of Lewis's complaint counts as a s t r ik e for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 3878 8 (5th Cir. 1996). Lewis previously accumulated two strikes in Lewis v. Herod, N o . 09-10706, 2010 WL 444406 (5th Cir. Feb. 2, 2010) (unpublished). Because L e w is has now accumulated three strikes, he is barred from proceeding IFP in a n y civil action or appeal filed while he is incarcerated or detained in any facility u n le s s he is under imminent danger of serious physical injury. See id. JUDGMENT AFFIRMED; MOTIONS DENIED; THREE-STRIKES B A R IMPOSED

3