Bobby Jones v. Rick Thaler, Director

Case: 12-10671 Document: 00512352204 Page: 1 Date Filed: 08/23/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 23, 2013
No. 12-10671
Summary Calendar Lyle W. Cayce
Clerk
BOBBY JOE JONES, also known as Bobby Jones,
Plaintiff-Appellant
v.
CHARLES MCDUFFIE, Senior Warden; GERALD DAVIS, Assistant Warden;
GERALD WHITFIELD, Correctional Officer; JAMES SUTTON, Correctional
Officer; DORTHY BARFOOT, Correctional Officer,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:10-CV-148
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Proceeding pro se and in forma pauperis (IFP), Bobby Joe Jones, Texas
prisoner # 679520, appeals the district court’s dismissal of his 42 U.S.C. § 1983complaint. He argues that Charles McDuffie and Gerald Whitfield violated his
right of access to the courts; that Whitfield violated his right to redress of
grievances by retaliating against him; that McDuffie, Whitfield, Dorthy Barfoot,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10671
John Gossett, and other prison employees conspired to violate his constitutional
rights before and during the pendency of his lawsuit; that the district court
abused its discretion in denying his motions for leave to amend his complaint,
for discovery, for appointed counsel, and for injunctive relief; and that the
district court was biased against him.
The district court dismissed Jones’s complaint as frivolous and for failure
to state a claim on which relief could be granted. See 42 U.S.C. § 1997e(c)(1); 28
U.S.C. §§ 1915(e)(2)(b), 1915A(b). Accordingly, we review the decision de novo.
Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009). A claim may be dismissed
for failure to state a claim upon which relief can be granted if, assuming all
well-pleaded facts are true, the plaintiff has not stated “enough facts to state a
claim to relief that is plausible on its face.” In re Katrina Canal Breaches Litig.,
495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks and citation
omitted).
Jones reurges the merits of his claims that Officer Whitfield violated his
right of access to the courts and his right to redress of grievances by retaliating
against him. He does not, however, address the district court’s detailed analysis
and dismissal of the foregoing claims as frivolous. When an appellant fails to
identify any error in the district court’s analysis, it is the same as if the
appellant had not appealed that issue. Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Therefore, Jones’s claims
against Whitfield regarding access to the courts and retaliation are deemed
abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Hughes
v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
His claim that Warden McDuffie violated his right of access to the courts
was not presented in the district court. Because we generally refuse to consider
arguments raised for the first time on appeal, we will not address the foregoing
claim. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
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He next claims that McDuffie, Whitfield, Barfoot, Gossett, and other
prison employees conspired to violate his constitutional rights before and during
the pendency of his lawsuit. Jones unsuccessfully attempted to amend his
complaint in the district court to raise these claims. The district court denied
Jones’s five separate motions for leave to amend because each was untimely
under both Rule 15 of the Federal Rules of Civil Procedure and the district
court’s scheduling order and because each of the proposed amendments would
be subject to dismissal for failure to state a claim on which relief can be granted.
See FED. R. CIV. P. 15(a). Jones’s conclusory and speculative arguments in his
appellate brief are insufficient to establish that the district court abused its
discretion when it denied his motions for leave to amend. See Martin’s Herend
Imports, Inc. v. Diamond & Gem Trading United States of America Co., 195 F.3d
765, 771 (5th Cir. 1999). Because the district court denied Jones’s motions for
leave to amend, it never considered these additional claims. Accordingly, we will
not address them. See Leverette, 183 F.3d at 342.
Jones asserts that the district court abused its discretion in denying his
motions for discovery, specifically his motion for McDuffie’s time records and the
prison’s call logs; appointed counsel; and injunctive relief. Jones’s motion for
time records and call logs was filed after the magistrate judge issued his report
and recommendation. Therefore, the district court did not abuse its discretion
in denying Jones’s discovery motion. See Wiwa v. Royal Dutch Petroleum Co.,
392 F.3d 812, 817 (5th Cir. 2004).
The district court denied Jones’s five motions for appointed counsel
because Jones failed to establish any of the factors used to determine whether
the appointment of counsel is appropriate in a civil case. See Baranowski v.
Hart, 486 F.3d 112, 126 (5th Cir. 2007). Jones’s conclusory assertions in his
appellate brief are insufficient to show that the district court abused its
discretion when it declined to appoint counsel to represent Jones. See id.3
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The district court also denied Jones’s numerous motions for temporary
restraining orders and preliminary injunctions. Because Jones did not prevail
on the merits, he cannot show that the district court abused its discretion in
denying his motions. See Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545,
551 (5th Cir. 1993).
Finally, Jones argues that the district court was biased against him.
Jones’s argument, which is based wholly on the district court’s adverse rulings
and his own conclusional assertions, is insufficient to show bias. See Liteky v.
United States, 510 U.S. 540, 555 (1994); Koch v. Puckett, 907 F.2d 524, 530 (5th
Cir. 1990).
Jones’s appeal is without arguable merit and, therefore, frivolous. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the appeal is
dismissed as frivolous. See 5TH CIR. R. 42.2. In light of the foregoing and
because Jones has not shown the existence of exceptional circumstances
warranting the appointment of counsel, his motion for the appointment of
appellate counsel is denied. See Ulmer v. Chancellor, 691 F.2d 209, 212, 213 (5th
Cir. 1982).
The district court’s dismissal of Jones’s complaint as frivolous and this
court’s dismissal of his appeal as frivolous count as two strikes for purposes of
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Jones
is hereby cautioned that if he accumulates three strikes he will no longer be
allowed to 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).
APPEAL DISMISSED; MOTION FOR THE APPOINTMENT OF
COUNSEL DENIED; SANCTION WARNING ISSUED.
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