David Haines v. Rick Thaler, Director

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David Haines v. Rick Thaler, Director

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Case: 09-20795

Document: 00511186009

Page: 1

Date Filed: 07/27/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20795 S u m m a r y Calendar July 27, 2010 Lyle W. Cayce Clerk

D A V I D MICHAEL HAINES, P e titio n e r-A p p e lla n t v. R I C K THALER, DIRECTOR, TEXAS DEPARTMENT OF CIRIMINAL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION, R e s p o n d e n t -A p p e lle e

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CV-3118

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* D a v id Michael Haines, Texas prisoner # 1562194, appeals, pro se and in fo r m a pauperis, the denial of his pro se petition for a writ of mandamus. Haines in it ia lly complained that the Texas Department of Criminal Justice was v io la t in g the consent decree issued by Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. T e x . 1980), aff'd in part, rev'd in part, 679 F.2d 1115 (5th Cir.), amended in part, v a c a te d in part, 688 F.2d 266 (5th Cir. 1982) (conditions of confinement). The

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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Case: 09-20795

Document: 00511186009 Page: 2 No. 09-20795

Date Filed: 07/27/2010

d is t r ic t court denied Haines mandamus relief and dismissed his action as fr iv o lo u s and for failure to state a claim. To the extent that Haines' "notice of amended appeal" can be construed as a timely notice of appeal from the district court's denial of his postjudgment m o t io n s , Haines has failed to address the district court's finding that it lacked j u r i s d ic t io n to consider those motions. Accordingly, it is as if he has not

a p p e a le d the denial of his postjudgment motions. See Brinkmann v. Dallas C o u n ty Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). H a in e s does not challenge the district court's concluding that Haines was n o t entitled to mandamus relief, and he appears to contend that his petition s h o u ld have been construed as a civil-rights complaint. The dismissal of a claim a s frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) is reviewed for abuse of discretion, a n d a dismissal for failure to state a claim under § 1915(e)(2)(B)(ii) is reviewed d e novo, using the same standard applicable to dismissals pursuant to Federal R u le of Civil Procedure 12(b)(6). Black v. Warren, 134 F.3d 732, 733 (5th Cir. 1 9 9 8 ). T h e district court considered construing Haines's petition as a civil-rights c o m p la in t but correctly determined that violations of the Ruiz decree, without m o r e , are not cognizable in a 42 U.S.C. § 1983 action. See Green v. McKaskle, 7 8 8 F.2d 1116, 1124 (5th Cir. 1986). To the extent Haines asserts that his c la im s of excessive force, denial of medical treatment, and denial of access to c o u r ts are cognizable under § 1983, his brief does not establish either when those v io la t io n s occurred or how any of the named defendants were involved with, or r e s p o n s ib le for, those claimed violations. As he has failed to adequately brief t h o s e claims, they are abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5 t h Cir. 1993); Brinkmann, 813 F.2d at 748. Moreover, although Haines

a t t e m p t s to incorporate contentions raised in district court into his appellate b r ie f by reference, he may not do so. See Yohey, 985 F.2d at 224-25.

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Case: 09-20795

Document: 00511186009 Page: 3 No. 09-20795

Date Filed: 07/27/2010

H a in e s ' claims that he should have been allowed to amend his petition do n o t demonstrate reversible error. He moved one time before the final judgment w a s entered to amend. Haines did not, however, seek to amend his petition to r a is e cognizable claims under § 1983. The district court did not abuse its

d is c r e t io n in denying the motion. See Whitaker v. City of Houston, 963 F.2d 831, 8 3 6 (5th Cir. 1992). A F F IR M E D .

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