Ralph Smith v. Dawn Grounds ( 2012 )


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  •      Case: 11-40859     Document: 00511840407         Page: 1     Date Filed: 05/01/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    May 1, 2012
    No. 11-40859
    Summary Calendar                        Lyle W. Cayce
    Clerk
    RALPH B. SMITH,
    Plaintiff-Appellant
    v.
    WARDEN DAWN GROUNDS; JEFF CALFEE, also known as Unidentified
    Calfee, also known as FNU Calfee; MAJOR RODGER MCDONALD;
    LIEUTENANT MICHAEL BRANTLEY; SARGEANT MRS. MOORE; NURSE
    CLAIRE RUSSELL; DR. REGINALDO STANLEY,
    Defendants-Appellees
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 5:10-CV-237
    Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
    PER CURIAM:*
    Ralph B. Smith, Texas prisoner # 855314, appeals the district court’s
    dismissal of his civil action under 
    42 U.S.C. § 1983
     and the Americans with
    Disabilities Act, 
    42 U.S.C. §§ 12101-12213
    , as frivolous and for failure to state
    a claim upon which relief may be granted. Smith argues that the district court
    violated his due process rights by ignoring evidence showing that he was entitled
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40859    Document: 00511840407      Page: 2   Date Filed: 05/01/2012
    No. 11-40859
    to relief. He briefly argues the facts of his claims, and he states that the record
    speaks for itself.
    The district court dismissed Smith’s complaint because it found that his
    claims for monetary damages and declaratory relief were barred by the Eleventh
    Amendment and his claim for injunctive relief was moot. By failing to discuss
    or even mention the district court’s rationales for dismissing his complaint,
    Smith has waived any challenge to the dismissal of his complaint.              See
    Brinkmann v. Dallas County Deputy Sheriff Abner, 
    813 F.2d 744
    , 748 (5th Cir.
    1987).
    Smith’s appeal is without arguable merit and is frivolous. See Howard v.
    King, 
    707 F.2d 215
    , 220 (5th Cir. 1983). Because the appeal is frivolous, it is
    dismissed. See 5TH CIR. R. 42.2. Smith’s motion for appointment of counsel is
    denied. See Santana v. Chandler, 
    961 F.2d 514
    , 515-16 (5th Cir. 1992).
    Both this court’s dismissal of the instant appeal and the district court’s
    dismissal of Smith’s complaint count as strikes for purposes of 
    28 U.S.C. § 1915
    (g). See Adepegba v. Hammons, 
    103 F.3d 383
    , 388 (5th Cir. 1996). During
    the pendency of this appeal, this court imposed the § 1915(g) bar against Smith.
    See Smith v. Hullum, 442 F. App’x 972, 972 (5th Cir. 2011).              Smith is
    admonished that he may not proceed IFP in any civil action or appeal filed while
    he is incarcerated or detained in any facility unless he “is under imminent
    danger of serious physical injury.” § 1915(g). Smith is also warned that filing
    further frivolous matters will subject him to sanctions in addition to those that
    are already in place. He is instructed to review any pending matters and move
    to dismiss any that are frivolous.
    APPEAL DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL
    DENIED; 
    28 U.S.C. § 1915
    (g) BAR REMAINS IN EFFECT; SANCTION
    WARNING ISSUED.
    2
    

Document Info

Docket Number: 11-40859

Judges: Clement, Dennis, Owen, Per Curiam

Filed Date: 5/1/2012

Precedential Status: Non-Precedential

Modified Date: 11/6/2024