Mendoza v. Moron

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 18, 2007
Charles R. Fulbruge III
Clerk
No. 06-40671
Summary Calendar
JESUS MENDOZA,
Plaintiff-Appellant,
versus
DAVID MORON, In his official capacity as agent of the Rio Grande
Center/Texas Department of State Health Service; NANCY E. MURRAY,
In her official capacity as agent of the Department of Assistive
and Rehabilitative Services; STEVEN R. ALEMAN, In his official
capacity as agent of the Department of Rehabilitative Services,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CV-184
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jesus Mendoza, also known as Jesus Mendoza Maldonado,
appeals from the grant of summary judgment for the defendants in
his civil action that raised claims under the Rehabilitation Act,
29 U.S.C. § 794, 42 U.S.C. § 1983, and the Due Process Clause.
Mendoza moves for leave to proceed in forma pauperis (IFP) on
appeal and for the production of the transcript of his hearing in
the district court.
*
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this opinion should not be published and is not precedent except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.
No. 06-40671
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Mendoza contends that he established his disability of
electricity sensitivity and that the determination of an
Administrative Law Judge that he was not disabled for the purpose
of receiving disability benefits under the Social Security Act
should not have been used to preclude a determination of
disability regarding his Rehabilitation Act contentions. We
dispose of Mendoza’s Rehabilitation Act contentions on a ground
other than the collateral estoppel effect of the decision of the
Administrative Law Judge. See Sojourner T. v. Edwards, 974 F.2d
27, 30 (5th Cir. 1992). To prevail under the Rehabilitation Act,
Mendoza must show that he was discriminated against solely on the
basis of a disability. See § 794(a). Mendoza’s allegations
indicated that he was denied rehabilitative services because he
was found not to be disabled, and not because of any
discrimination against him on the basis of his asserted
disability. The district court did not err by granting summary
judgment. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc).
Mendoza contends that he was deprived of due process at his
state administrative hearing. Process is due only if there
exists a constitutionally protected interest. See Rivers v.
Schweiker, 684 F.2d 1144, 1158 (5th Cir. 1982). The statutes
governing rehabilitation benefits in Texas do not create any
contractual expectation of benefits giving rise to any
constitutionally protected interest. See TEX. HUM. RES. CODE ANN.
No. 06-40671
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§ 111.052 (Vernon 2001); Weinberger v. Salfi, 422 U.S. 749, 772
(1975); Jones v. Dept. of Health and Human Servs., 843 F.2d 851,
854 (5th Cir. 1988). Mendoza’s argument that he was deprived of
due process at his state administrative hearing therefore is
unavailing.
Mendoza contends that the district court erred by finding
that he has no right to amend his medical records because state
law provides him with such a right. Mendoza does not allege what
he would add or delete from his medical records. He has failed
to brief the issue for appeal. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Mendoza contends that the district court erred by not ruling
on, and granting, his motion to amend his complaint. The
district court did not abuse its discretion by failing to grant
the motion to amend. See Dussouy v. Gulf Coast Inv. Corp., 660
F.2d 594, 597 (5th Cir. 1981).
Mendoza’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, IFP is denied and the appeal is
dismissed. See 5TH CIR. R. 42.2. Additionally, because the
appeal is frivolous, Mendoza’s motion for the transcript of the
hearing in the district court is denied. See 28 U.S.C. § 753(f).
Finally, we recently warned Mendoza that “future frivolous
filings will subject him to sanctions.” Maldonado v. Lindquist,
197 F. App’x 343, 344 (5th Cir. 2006) (unpublished). Mendoza
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filed his notice of appeal and his brief in the instant case
before we issued that warning. We repeat our warning that future
frivolous filings will subject Mendoza to sanctions, whether he
proceeds as Jesus Mendoza or Jesus Mendoza Maldonado.
IFP DENIED; TRANSCRIPT DENIED; APPEAL DISMISSED; SANCTION
WARNING ISSUED.