Edward Smith v. Lonestar Construction, Inc., et al

Filing

UNPUBLISHED OPINION FILED. [11-50474 Affirmed ] Judge: FPB , Judge: CES , Judge: EBC Mandate pull date is 11/15/2011; denying motion to appoint counsel filed by Appellant Mr. Edward DeShan Smith [6840366-2] [11-50474]

Case: 11-50474

Document: 00511643378

Page: 1

Date Filed: 10/25/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
October 25, 2011

No. 11-50474
Summary Calendar

Lyle W. Cayce
Clerk

EDWARD DESHAN SMITH,
Plaintiff-Appellant
v.
LONESTAR CONSTRUCTION, INCORPORATED; AMERIGROUP
COMMUNITY CARE; TEXAS DEPARTMENT OF AGING AND
DISABILITY SERVICES, Texas Home Living (TxHmL) Program Service
Definitions and Billing Guidelines; LARRY MOORE LOCKE,
Defendants-Appellees

Appeal from the United States District Court
for the Western District of Texas
No. A-11-CA-149-SS

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
In February 2011, Edward Deshan Smith filed a lawsuit alleging various
constitutional and statutory violations. After accepting the magistrate judge’s
recommendation, the district court dismissed his pro se complaint. Finding no
error in the district court’s judgment, we affirm.

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50474

Document: 00511643378

Page: 2

Date Filed: 10/25/2011

No. 11-50474

I.
The Texas Department of Aging and Disability Services funds minor home
physical modifications when necessary to address an individual’s specific needs.
These modifications are performed to ensure the health, welfare, and safety of
the individual, or to enable the individual to function with greater independence
in the home. Examples of modifications include the installation of ramps and
the widening of doorways.
Smith is a paraplegic who also suffers from mental health problems. At
one point, he lived in a nursing home. After an unspecified amount of time at
the nursing home, Smith moved in with his uncle. In November 2010, he alleges
that Lonestar Construction performed some work on his uncle’s home that was
funded by the Texas Department of Aging and Disability Services. According to
Smith, Lonestar’s workers did a poor job with some plumbing work that was
performed. Smith also alleges that they performed similarly shoddy work on
other repairs that were done. Taken together, Smith avers that these poorly
performed repairs have rendered his uncle’s home a safety hazard.
On February 28, 2011, Smith filed suit in federal court. In his pro se
complaint, Smith alleged that the work performed by Lonestar violated his
constitutional and statutory rights. On May 16, 2011, the district court, after
accepting the magistrate judge’s recommendation, dismissed Smith’s complaint
in this action along with three other pending lawsuits. In light of “Smith’s
deluge of frivolous filings,” the district court also ordered the Clerk’s Office not
to open any new cases filed by or on behalf of Smith. Smith then filed a timely
notice of appeal.
II.
On appeal, Smith continues to argue that the poor job performed by
Lonestar violated his constitutional and statutory rights. He fails, however, to
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Document: 00511643378

Page: 3

Date Filed: 10/25/2011

No. 11-50474
set forth reasons why the district court’s judgment was incorrect. Given this
extremely undeveloped presentation, we conclude that any arguments attacking
the district court’s judgment have been abandoned on appeal. See Dardar v.
Lafourache Realty Co., Inc., 985 F.2d 824, 831 (5th Cir. 1993) (“Questions posed
for appellate review but inadequately briefed are considered abandoned.”)
(citations omitted). While we “liberally construe briefs of pro se litigants and
apply less stringent standards to parties proceeding pro se than to parties
represented by counsel, pro se parties must still brief the issues and reasonably
comply with the standards of Rule 28.” Grant v. Cuellar, 59 F.3d 523, 524 (5th
Cir. 1995) (citation omitted). Further, Smith has not shown that exceptional
circumstances exist that would warrant appointment of appellate counsel. See
Cooper v. Sheriff, Lubbock Cnty., Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
III.
Finding no error in the district court’s judgment, we AFFIRM. All
pending motions are DENIED.

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