James Byrd v. John Adams

Case: 10-10121 Document: 00511201001 Page: 1 Date Filed: 08/11/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 11, 2010
No. 10-10121
Summary Calendar Lyle W. Cayce
Clerk
JAMES LEE BYRD,
Plaintiff-Appellant
v.
JOHN H. ADAMS, Senior Warden; JAMIE L. BAKER, Assistant Warden;
DHIRAJLAL PATEL, Correctional Physician,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:09-CV-312
Before KING, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
James Lee Byrd, Texas prisoner # 1260737, filed a civil rights complaint
alleging cruel and unusual punishment and deliberate indifference to his serious
medical needs. The complaint stems from a prison policy restricting high
security inmates to one roll of toilet paper per week. Byrd developed
hemorrhoids and peeling skin as a result of resorting to the use of writing paper,
newspaper, and cloth as substitutes for toilet paper. The district court dismissed
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-10121 Document: 00511201001 Page: 2 Date Filed: 08/11/2010
No. 10-10121
his claims as frivolous and for failure to state a claim, citing 28 U.S.C.
§§ 1915(e)(2) and 1915A. Byrd filed a timely notice of appeal.
We grant Byrd’s request for leave to file a corrected brief in this court.
Byrd contends that the district court erred in determining that his claims were
frivolous or failed to state a claim without first serving his complaint on the
defendants and hearing an answer from them. A district court, however, may
dismiss a prisoner’s in forma pauperis (IFP) action whenever it properly
determines that the action is frivolous or fails to state a claim, even prior to
service of process. See §§ 1915(e)(2) & 1915A. He also contends that the district
court erred in denying his postjudgment motion to amend his complaint.
Because Byrd’s motion to amend contained facts and arguments that he raised
in his objections to the magistrate judge’s report and recommendation and that
were addressed before the court’s judgment of dismissal, he has not shown that
the district court abused its discretion in denying his motion. See Rosenzweig
v. Azurix Corp., 332 F.3d 854, 865 (5th Cir. 2003); Vielma v. Eureka Co., 218
F.3d 458, 468 (5th Cir. 2000). Byrd’s appeal does not present extraordinary
circumstances that would warrant the appointment of counsel. See Cooper v.
Sheriff, Lubbock Cty., Tex., 929 F.2d 1078, 1085 (5th Cir. 1991). Accordingly, his
motion for the appointment of counsel is denied.
The judgment of the district court is affirmed. The district court’s
dismissal of Byrd’s complaint counts as a strike for purposes of § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Byrd is warned 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 in imminent danger of serious physical injury. See
§ 1915(g).
JUDGMENT AFFIRMED; MOTION TO FILE CORRECTED BRIEF
GRANTED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
SANCTION WARNING ISSUED.
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