Foster v. Anheuser Busch Co ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-30347
Summary Calendar
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JOSEPH V. FOSTER, JR.,
Plaintiff-Appellant,
versus
ANHEUSER BUSCH COMPANIES, INC., and
all subsidiaries, either marketing,
manufacturing, transporting, and/or
selling its product known, hereinafter
as Budweiser Beer,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 95-CV-327-C
_________________________________________________________________
February 10, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Joseph Foster, Louisiana prisoner #75808, proceeding pro se
and in forma pauperis (IFP), appeals the district court’s dismissal
of his products liability suit against Anheuser Busch for its
manufacturing and marketing of Budweiser Beer. Foster’s district
court pleadings demonstrate his ability to adequately present his
claims. His motion for the appointment of counsel is DENIED. See
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
*
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this opinion should not be published and is not precedent except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.
Foster asserted a wrongful death action and a survival action
based upon his wife’s alcoholism, her alcohol-related problems, and
her death in 1994. Adopting the magistrate judge’s report, the
district court dismissed the wrongful death action by a grant of a
motion to dismiss and the court dismissed the survival action by
summary judgment. The district court concluded that the wrongful
death action was without merit under the Louisiana Products
Liability Act (the “LPLA”) and that the survival action was without
merit because 1) Anheuser Busch was not liable under the LPLA, 2)
the claim was prescribed because Anheuser Busch’s actions ceased to
be tortious with the enactment of the LPLA (September 1, 1988) and
Foster failed to file his suit within a year thereof, and 3) the
claim was without merit under pre-LPLA law.
On appeal, Foster argues that 1) the district court erred by
not granting his request to recuse certain district court judges
and all the magistrate judges, 2) the district court prematurely
dismissed Foster’s claims without requiring Anheuser Busch to
answer and without allowing discovery, 3) Foster’s survival action
was not prescribed under a continuous tort theory, 4) the Prison
Litigation Reform Act (the “PLRA”) does not apply to Foster, his
appellate filing fees should be returned, and the district court
was in error for sua sponte raising the prescription issue, and 5)
the PLRA violates Equal Protection and a prisoner’s right of access
to the courts.
2
Foster’s recusal argument is conclusional and without merit.
The denial of his motion in the district court was not an abuse of
discretion. See United States v. MMR Corp., 954 F.2d 1040, 1044
(5th Cir. 1992). With respect to Foster’s challenges to the
premature dismissal of his case, Foster has not shown what evidence
he would have presented had he been able to conduct discovery; nor
did the district court have to wait for an answer to Foster’s
complaint to address the merits of his claims. See Fed. R. Civ. P.
12(b)(6); 28 U.S.C. § 1915(e)(2); Ali v. Higgs, 892 F.2d 438, 440
(5th Cir. 1980).
Although Foster argues that his survival action has not
prescribed because the tort alleged in his complaint was a
continuing one, Foster does not challenge the district court’s
conclusions that his claims were without merit under both the LPLA
and the law in effect before the LPLA. Foster has thus waived this
challenge, and he is not entitled to relief even if his claims were
not prescribed. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993) (appellant’s failure to brief issue constitutes a waiver
of the issue). Foster’s challenges to the PLRA are without merit.
See Strickland v. Rankin County Correctional Facility, 105 F.3d
972, 974 (5th Cir. 1997); Carson v. Johnson, 112 F.3d 818, 821-22
(5th Cir. 1997); Norton v. Dimazana, 122 F.3d 286, 290 (5th Cir.
1997).
The district court’s dismissal of Foster’s suit is
AFFIRMED;
3
MOTION DENIED.
4