James Byrd v. John Adams, et al

Filing

Case: 10-10121

Document: 00511201001

Page: 1

Date Filed: 08/11/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10121 S u m m a r y Calendar August 11, 2010 Lyle W. Cayce Clerk

J A M E S LEE BYRD, P la in t if f -A p p e lla n t v. J O H N H. ADAMS, Senior Warden; JAMIE L. BAKER, Assistant Warden; D H I R A J L A L PATEL, Correctional Physician, 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. 2:09-CV-312

B e fo r e KING, GARZA and STEWART, Circuit Judges. P E R CURIAM:* J a m e s Lee Byrd, Texas prisoner # 1260737, filed a civil rights complaint a lle g in g cruel and unusual punishment and deliberate indifference to his serious m e d ic a l needs. The complaint stems from a prison policy restricting high Byrd developed

s e c u r it y inmates to one roll of toilet paper per week.

h e m o r r h o id s and peeling skin as a result of resorting to the use of writing paper, n e w s p a p e r , and cloth as substitutes for toilet paper. The district court dismissed

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

Case: 10-10121

Document: 00511201001 Page: 2 No. 10-10121

Date Filed: 08/11/2010

h is claims as frivolous and for failure to state a claim, citing 28 U.S.C. § § 1915(e)(2) and 1915A. Byrd filed a timely notice of appeal. W e grant Byrd's request for leave to file a corrected brief in this court. Byrd contends that the district court erred in determining that his claims were fr iv o lo u s or failed to state a claim without first serving his complaint on the d e fe n d a n t s and hearing an answer from them. A district court, however, may d is m is s a prisoner's in forma pauperis (IFP) action whenever it properly d e t e r m in e s that the action is frivolous or fails to state a claim, even prior to s e r v ic e of process. See §§ 1915(e)(2) & 1915A. He also contends that the district c o u r t erred in denying his postjudgment motion to amend his complaint. Because Byrd's motion to amend contained facts and arguments that he raised in his objections to the magistrate judge's report and recommendation and that w e r e addressed before the court's judgment of dismissal, he has not shown that t h e district court abused its discretion in denying his motion. See Rosenzweig v . Azurix Corp., 332 F.3d 854, 865 (5th Cir. 2003); Vielma v. Eureka Co., 218 F .3 d 458, 468 (5th Cir. 2000). Byrd's appeal does not present extraordinary c ir c u m s t a n c e s that would warrant the appointment of counsel. See Cooper v. S h e r iff, Lubbock Cty., Tex., 929 F.2d 1078, 1085 (5th Cir. 1991). Accordingly, his m o t io n for the appointment of counsel is denied. T h e judgment of the district court is affirmed. The district court's

d i s m i s s a l of Byrd's complaint counts as a strike for purposes of § 1915(g). See A d e p e g b a v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Byrd is warned that if he accumulates three strikes, he will no longer be allowed to proceed in forma p a u p e r is in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is in imminent danger of serious physical injury. See § 1915(g). J U D G M E N T AFFIRMED; MOTION TO FILE CORRECTED BRIEF G R A N T E D ; MOTION FOR APPOINTMENT OF COUNSEL DENIED; S A N C T I O N WARNING ISSUED. 2