Rhonnie Simmons v. William Stephens, Director, et , 560 F. App'x 361 ( 2014 )

Case: 13-20399 Document: 00512579716 Page: 1 Date Filed: 03/31/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-20399 March 31, 2014
Summary Calendar
Lyle W. Cayce
Clerk
RHONNIE ODELL SIMMONS,
Plaintiff-Appellant
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; FRANK HOKE,
Access to Courts; J. D. SEIGLE, Access to Courts,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CV-1551
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Rhonnie Odell Simmons, Texas prisoner # 1702384, appeals the district
court’s denial of his motion to enforce the remedial orders issued in Ruiz v.
Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980), aff’d in part and vacated in part
679 F.2d 1115 (5th Cir.), amended in part and vacated in part 688 F.2d 266
(5th Cir. 1982). He argues that the district court erred when it treated his suit
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-20399
as an independent complaint, rather than as an enforcement action arising
under 28 U.S.C. § 1651 and Rule 70(e) of the Federal Rules of Civil Procedure.
He argues that the district court erred when it failed to enforce the standing
orders in Ruiz and that it also engaged in racially discriminatory behavior.
The district court dismissed Simmons’s action pursuant to 28 U.S.C.
§ 1915A(b)(1) as frivolous, finding that it lacked an arguable basis in fact. This
court’s precedent is inconsistent as to whether a Section 1915A(b)(1) dismissal
is reviewed de novo or for abuse of discretion. See Morris v. McAllester, 702
F.3d 187, 189 (5th Cir. 2012). However, there is no need to resolve the
discrepancy. Even under the more stringent de novo standard, Simmons fails
to show any error by the district court.
Simmons has made no attempt to show that he was entitled to
mandamus under Section 1651. It is clear that the remedy for a claim of denial
of access to the courts is instead a 42 U.S.C. § 1983 action. See United States
v. Williams, 400 F.3d 277, 280 (5th Cir. 2005). To the extent that Simmons
seeks enforcement of the Ruiz decree through a Section 1983 action, the district
court properly dismissed his claim as frivolous. The Ruiz decree, by itself, does
not create constitutional rights that may be vindicated in Section 1983 suits
by individual prisoners. Green v. McKaskle, 788 F.2d 1116, 1123 (5th Cir.
1986); see also Sanders v. Johnson, 2001 WL 872796 at *1 (5th Cir. July 6,
2001) (unpublished).
To the extent that Simmons asserted a claim of denial of access to the
courts, he failed to state a claim. See Lewis v. Casey, 518 U.S. 343, 351 (1996).
Although Simmons alleges that defendant J.D. Seigle removed law books from
the law library, he does not indicate how the removal of those books personally
harmed him. The claim is abandoned due to inadequate briefing. See Yohey
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No. 13-20399
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Finally, Simmons raised claims of racism and misconduct by the district
judge in his motion to alter or amend the judgment in the district court. The
district court implicitly denied those claims. He has not shown that the district
court erred in denying these claims as they are purely speculative. See Liteky
v. United States, 510 U.S. 540, 555 (1994).
Because Simmons’s appeal is without arguable merit and is frivolous, it
is dismissed. See 5TH CIR. R. 42.2. The district court’s dismissal of Simmons’s
motion as frivolous and this court’s dismissal of his appeal as frivolous count
as two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387 (5th Cir. 1996). Simmons is cautioned that if he accumulates
three strikes he will no longer be allowed to proceed in forma pauperis 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).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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