Johnny Lewis v. Rick Thaler ( 2010 )

Case: 09-10993 Document: 00511168230 Page: 1 Date Filed: 07/09/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 9, 2010
No. 09-10993
Summary Calendar Lyle W. Cayce
Clerk
JOHNNY DEWAYNE LEWIS,
Plaintiff-Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; WARDEN NFN MCKENNON;
NFN BURDETT, Assistant Warden; CELESTE BYRNE, Private Contract
Monitoring; BOBBY LUMKIN, Deputy Director of Operations; NFN OWENS;
NFN MORALES;
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CV-508
Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Johnny Dewayne Lewis, Texas inmate # 1558124, appeals the sua sponte
dismissal of his pro se informa pauperis (IFP) 42 U.S.C. § 1983 claim for denial
of access to courts and seizure of personal mail for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Lewis filed
suit against the director of the Texas Department of Criminal Justice as well as
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 09-10993
several other prison officials. He also moves this court for injunctions pending
appeal.
A dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim upon which
relief may be granted is reviewed under the same de novo standard as a
dismissal under Federal Rule of Civil Procedure 12(b)(6). Black v. Warren, 134
F.3d 732, 733-34 (5th Cir. 1998). “The complaint must be liberally construed,
with all reasonable inferences drawn in the light most favorable to the plaintiff.”
Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (citation omitted).
Prisoners have a constitutional right to access the courts. Bounds v.
Smith, 430 U.S. 817, 821 (1977). However, “Bounds did not create an abstract,
freestanding right to a law library or legal assistance.” See Lewis v. Casey, 518
U.S. 343, 351-52 (1996). To prevail on a claim of denial of access to courts, a
prisoner must show actual injury. Id. at 349-52. Lewis’s claims that he was
denied access to courts because prison officials denied him legal envelopes and
also failed to send out his legal mail are without merit. Specifically, his failure
to allege that he suffered an actual injury is fatal to his “denial of access to
courts” claim. Id. at 349-52. Thus, the district court did not err by dismissing
this claim for failure to state a claim upon which relief may be granted.
Additionally, Lewis’s claim that his First Amendment rights were violated
because prison officials seized and destroyed a personal incoming letter is
likewise without merit. In particular, because Lewis failed to identify any error
in the district court’s analysis regarding this claim, it is as if he had not
appealed the judgment. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987). Although pro se briefs are afforded liberal
construction, even pro se litigants must brief arguments in order to preserve
them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Because Lewis has
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No. 09-10993
not addressed the district court’s determination that this claim should be
dismissed for failure to state a claim, he has abandoned this issue. See
Brinkmann, 813 F.2d at 748; Yohey, 985 F.2d at 224-25.
Lewis has requested injunctions ordering prison officials to provide him
with copies of “legal papers” and to provide him with access to courts. To obtain
a preliminary injunction, movant must establish: (1) a substantial likelihood of
success on the merits, (2) a substantial threat that failure to grant the injunction
will result in irreparable injury, (3) that the threatened injury outweighs any
damage that the injunction may cause the opposing party, and (4) that the
injunction will not deserve the public interest. See F ED. R. A PP. P. 8; United
States v. Baylor University Med. Ctr., 711 F.2d 38, 39 (5th Cir. 1983). Lewis fails
to make the requisite showing; therefore, his motions for injunction pending
appeal are denied.
Finally, the district court’s dismissal of Lewis’s complaint counts as a
strike for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-
88 (5th Cir. 1996). Lewis previously accumulated two strikes in Lewis v. Herod,
No. 09-10706, 2010 WL 444406 (5th Cir. Feb. 2, 2010) (unpublished). Because
Lewis has now accumulated three strikes, he is barred from proceeding 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. See id.
JUDGMENT AFFIRMED; MOTIONS DENIED; THREE-STRIKES
BAR IMPOSED
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