Flowers v. TX Dept Cr Justice ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-40990
Summary Calendar
_____________________
CHON QUEVEDO FLOWERS, also known as
Khalidin Saw-wa Afa,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; UNIVERSITY OF
TEXAS MEDICAL BRANCH; A. D. CASKEY,
Senior Warden, Individually & in
official capacity; EDWARD L. GALLOWAY,
Chief, Classification, Individually &
in official capacity; TRACY M. MURPHY,
Manager, Health Services, Individually
& in official capacity; DIANA L. KELLY,
Assistant Manager, Health Services,
Individually & in official capacity;
ROCHELLE McKINNEY, Chief of Nurses,
Individually & in official capacity;
UNIDENTIFIED DOMINGUEZ, DR., Individually
& in official capacity,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
USDC No. 6:98-CV-457
_________________________________________________________________
July 13, 2000
Before JOLLY, JONES, and BENAVIDES, 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this opinion should not be published and is not precedent except
Chon Quevedo Flowers, Texas prisoner # 652860, appeals the
district court’s dismissal of his complaint. Flowers’s federal
civil rights claims were dismissed by the district court for
failure to state a claim and as legally frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i) & (ii). His supplemental state law claims were
dismissed without prejudice.
In his lengthy complaint, Flowers made numerous allegations
relating to the alleged denial of proper medical treatment for
asthma, allergies, and back problems. He also asserted that his
medical classification was improper and that he was placed in
inappropriate working assignments.
Flowers has abandoned the issues of retaliation and conspiracy
by not raising them in his appellate brief. See Yohey v. Collins,
985 F.2d 222, 224 (5th Cir. 1993).
The district court considered information outside of the
pleadings in holding that Flowers’s allegations failed to state a
claim. See FED. R. CIV. P. 12(b). Additionally, the district court
limited Flowers’s claims to those alleged to have occurred between
July 22, 1996 and October 15, 1996, based on assertions made in
Flowers’s response to the court’s order to file an amended
complaint. If we liberally construe Flowers’s response to the
district court’s order, as we must under Haines v. Kerner, 404 U.S.
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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519 (1972), it incorporated by reference the original complaint.
See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994).
Nevertheless, we may affirm on any basis supported by the
record. See Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir.
1992). Because we find that Flowers’s claims were legally
frivolous, we affirm the district court’s judgment on this
alternative ground. See Neitzke v. Williams, 490 U.S. 319, 327
(1989); Breaux v. City of Garland, 205 F.3d 150, 161 (5th Cir.
2000), petition for cert. filed, (U.S. May 22, 2000) (No. 99-1863);
Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992); Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
A F F I R M E D.
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