Iron Thunderhorse v. Rissie Owens ( 2019 )

Case: 18-20145 Document: 00514888218 Page: 1 Date Filed: 03/26/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-20145 March 26, 2019
Summary Calendar
Lyle W. Cayce
Clerk
IRON THUNDERHORSE,
Plaintiff–Appellant,
v.
RISSIE OWENS, Texas Board of Pardons and Paroles Chairperson, sued in
their individual as well as official capacities; DONNA WAGLEY, Texas Board
of Pardons and Paroles, Parole regional Supervisor for DP04, sued in her
individual as well as official capacities; CANDICE WOODARD, Texas Board
of Pardons and Paroles, Parole Officer at DP04, sued in their official and
individual capacities; CHRISTOPHER COOPER, DP04 Parole Officer sued in
official and individual capacity; BRAD LIVINGSTON, Executive Director of
the Texas Department of Criminal Justice, sued in an official as well as
individual capacity,
Defendants–Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-3530
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-20145 Document: 00514888218 Page: 2 Date Filed: 03/26/2019
No. 18-20145
Iron Thunderhorse, Texas prisoner # 00624391, filed a pro se civil rights
complaint under 42 U.S.C. § 1983 challenging the conditions of his release on
parole. Thunderhorse alleged that he was denied the ability to practice his
religion freely during his confinement in a halfway house in violation of the
First Amendment and the Religious Land Use and Institutionalized Persons
Act. He further alleged that the conditions of his parole did not accommodate
his disability as an elderly blind person in violation of the Americans with
Disabilities Act and the Rehabilitation Act.
The district court granted the defendants’ partial motion to dismiss, and
because the parties were unable to identify any remaining live claims, the
court later dismissed the case with prejudice. This court reviews dismissals
under Federal Rules of Civil Procedure 12(b)(1) and (b)(6) de novo, applying
the same standards used by the district court. Ruiz v. Brennan, 851 F.3d 464,
468 (5th Cir. 2017); Spotts v. United States, 613 F.3d 559, 565 (5th Cir. 2010).
Thunderhorse complains that he was not afforded the benefit of liberal
construction as a pro se litigant and that the district court applied a “stricter
standard” in considering the allegations in his complaint. This argument is
without merit. The district court recognized in its order that as a pro se
litigant, Thunderhorse’s pleadings were entitled to “liberal construction,”
which meant that they would be subject to “less stringent standards than
formal pleadings drafted by lawyers.”
The district court also did not dismiss Thunderhorse’s claims for
injunctive relief based solely on the retirement of two named defendants as
Thunderhorse maintains. Instead, the court concluded that Thunderhorse’s
claims for injunctive relief were moot because Thunderhorse’s parole had been
revoked, and he was no longer on parole or subject to any of the conditions of
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No. 18-20145
supervised release that he complained of in his lawsuit, and there was no
apparent prospect for his release on parole in the foreseeable future.
According to Thunderhorse, the district court “improperly resolved the
issue of statutes of limitations [sic] without consideration of mitigating
circumstances.” He complains that the court failed to consider the fact that he
had been transferred to six different facilities in one year and was often
without his legal materials for extended periods of time.
To the extent that Thunderhorse is arguing for equitable tolling of the
limitations period, he did not raise any such argument before the district court.
Arguments not raised before the district court are forfeited and will not be
considered on appeal unless the party can demonstrate “extraordinary
circumstances.” N. Alamo Water Supply Corp. v. City of San Juan, 90 F.3d
910, 916 (5th Cir. 1996). Thunderhorse makes no effort to establish
extraordinary circumstances.
Though Thunderhorse complains that the district court dismissed his
case “outright” without “guidance or affirmative instructions to the parties,” it
is clear from the court’s initial order that it did not dismiss Thunderhorse’s
case before providing the parties an opportunity to identify any remaining live
claims. As such, Thunderhorse’s claimed violation of his right to due process
is without merit.
Contesting the district court’s decision to dismiss the case with prejudice,
Thunderhorse argues that the court should have considered alternatives, such
as ordering him to submit a detailed reply or a more definite statement. Here,
however, the court was under no obligation to order a more definite statement,
especially when Thunderhorse had already been granted leave to amend his
original complaint and had been given the opportunity to identify any
remaining live controversies after the court granted the defendants’ partial
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motion to dismiss. See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)
(per curiam).
Thunderhorse complains that the district court abused its discretion in
denying his motion for the appointment of counsel given “the circumsta[n]ces
of this case.” He does not elaborate further on the issue or otherwise address
the district court’s analysis under Ulmer v. Chancellor, 691 F.2d 209, 213 (5th
Cir. 1982). Because Thunderhorse has not addressed the district court’s
reasons for denying his motion for the appointment of counsel, he has
abandoned the issue on appeal. See Brinkmann v. Dallas Cty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
He also challenges the transfer of his case from the Western District of
Texas to the Southern District of Texas, but he does not address the district
court’s analysis under In re Volkswagen of America, Inc., 545 F.3d 304, 314
(5th Cir. 2008). He merely argues that venue is proper in the Western District
of Texas because the state agencies involved in his lawsuit are in Austin and
his choice of venue should be given deference. The plaintiff’s choice of forum
is a factor to be considered, but “it is neither conclusive nor determinative.” In
re Horseshoe Entm’t, 337 F.3d 429, 434 (5th Cir. 2003). Thunderhorse has
failed to show that the district court abused its discretion in granting the
defendants’ motion to transfer. See Broussard v. State Farm Fire & Cas. Co.,
523 F.3d 618, 631 (5th Cir. 2008).
Based on the foregoing, the judgment of the district court is AFFIRMED.
Thunderhorse’s motion to strike the defendants’ brief is DENIED.
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