Gary Hunter, et al v. Brad Livingston, et al

Filing

UNPUBLISHED OPINION FILED. [12-51071 Affirmed ] Judge: PEH , Judge: JLD , Judge: JEG Mandate pull date is 08/05/2014 [12-51071]

Case: 12-51071

Document: 00512698658

Page: 1

Date Filed: 07/15/2014

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

No. 12-51071
Summary Calendar

FILED
July 15, 2014
Lyle W. Cayce
Clerk

PHILIP ROBERT CRITCHLEY, JR.; MICHAEL POWERS; CARY A. WILKE;
STEVEN M. SCHUELKE; RICHARD C. STRICKLIN; MICHAEL R. ADAMS,
Plaintiffs-Appellants
v.
RICK PERRY, Governor, State of Texas; JERRY MADDEN, State
Representative; JOHN DOE AND JANE DOE, REPRESENTATIVES, who
voted in favor of $100.00 copay bill; JOHN DOE AND JANE DOE,
SENATORS, who voted in favor of $100.00 copay bill; BRAD LIVINGSTON,
Executive Director, Texas Department of Criminal Justice,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:11-CV-857
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Philip Robert Critchley, Jr., Michael Powers, Cary A. Wilke, Steven M.
Schuelke, Richard C. Stricklin, and Michael R. Adams (the Appellants) filed
a civil rights lawsuit challenging § 501.063 of the Texas Government Code,
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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which requires state inmates to pay an annual $100 health care services fee
from their prison trust accounts if they initiate visits to health care providers.
The court dismissed the lawsuit under 28 U.S.C. § 1915(e)(2)(B) for failure to
state a claim upon which relief may be granted.
In their original complaint, the Appellants sought a declaration that the
statute: violates the Due Process Clause of the Fourteenth Amendment
through faulty notice of the recent enactment; constitutes double-taxing and
extortion; supports a disparate impact Title VII claim; and is an impermissible
taking that violates the Due Process and Equal Protection Clauses. None of
these substantive issues have been briefed.

Although this court liberally

construes briefs filed by pro se litigants, even they must brief arguments in
order to preserve them. Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999);
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
In a proposed amended complaint, the Appellants contended also that
§ 501.063 violated their Eighth Amendment right against cruel and unusual
punishment. Although the Eighth Amendment issue has been briefed, it is
foreclosed by this court’s recent opinion in Morris v. Livingston, 739 F.3d 740,
746-52 (5th Cir. 2014), petition for cert. filed (Apr. 8, 2014) (No. 13-9764).
The Appellants contend that the district court erred in failing to permit
amendment of the complaint prior to its dismissal, in dismissing the complaint
with prejudice, and in dismissing the complaint prior to service of the
defendants. No reversible error has been shown. “[The district] court shall
dismiss the case at any time if [it] determines that . . . the action . . . is frivolous
or malicious [or] fails to state a claim on which relief may be granted.”
§ 1915(e)(2)(B); see also Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir. 1991).
In light of Morris, there is no reason to believe that the Appellants could have
cured the deficiencies in their pleadings through amendment, and any error in

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refusing to permit the Appellants to amend their complaint once as a matter
of right under Rule 15(a) of the Federal Rules of Civil Procedure was harmless.
See 739 F.3d at 746-52; see also Bazrowx v. Scott, 136 F.3d 1053, 1054-55 (5th
Cir. 1998).
Next, the Appellants contend that the district court erred by dismissing
the original defendants on Eleventh Amendment immunity grounds. There
was no error. The district court determined properly that Brad Livingston, in
his official capacity as Director of the Texas Department of Criminal Justice,
was the proper party defendant. See Morris, 739 F.3d at 746.
AFFIRMED.

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