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Summary: UNITED STATES COURT OF APPEALS for the Fifth Circuit _ No. 95-10624 Summary Calendar _ JOSEPH ALFRED ROME, JR., Plaintiff-Appellant, VERSUS WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; DAVID L. MYERS; GOAD, Doctor; K. IVY, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Texas _ November 6, 1995 Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges. PER CURIAM:1 Rome challenges the dismissal of his § 1983 actio
Summary: UNITED STATES COURT OF APPEALS for the Fifth Circuit _ No. 95-10624 Summary Calendar _ JOSEPH ALFRED ROME, JR., Plaintiff-Appellant, VERSUS WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; DAVID L. MYERS; GOAD, Doctor; K. IVY, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Texas _ November 6, 1995 Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges. PER CURIAM:1 Rome challenges the dismissal of his § 1983 action..
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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 95-10624
Summary Calendar
_____________________________________
JOSEPH ALFRED ROME, JR.,
Plaintiff-Appellant,
VERSUS
WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;
DAVID L. MYERS; GOAD, Doctor; K. IVY,
Defendants-Appellees.
______________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________________________________
November 6, 1995
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:1
Rome challenges the dismissal of his § 1983 action. We
affirm.
I.
Joseph Alfred Rome, Jr., a Texas Department of Criminal
Justice (TDCJ) prisoner, filed a 42 U.S.C. § 1983 complaint
alleging that he is being compelled to attend school unlawfully
while incarcerated at the Venus Prison, a private facility operated
1
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
under a contract with TDCJ. Rome also alleged that the state
statute which authorizes TDCJ to compel inmates to work is a
violation of the Thirteenth Amendment prohibition against
involuntary servitude.
Rome filed an amended complaint alleging that 1) the prison
laundry does not properly clean the inmates' clothing; 2) the
kitchen facilities are inadequate and unsanitary; 3) the guards are
not properly trained; 4) the commissary is inadequately stocked; 5)
the mail room is not operated in a constitutional manner; 6) the
law and general library personnel restrict the legal rights of the
inmates; and 7) the grievance procedure is not handled in accord
with the TDCJ rules and regulations. Rome requested that the
facility be brought within the standards of Ruiz2 and that the mail
room be operated in accord with the Guajardo3 standards. Rome also
sought compensatory and punitive damages.
Rome also filed a motion for a temporary restraining order
(TRO) or a preliminary injunction directing the prison personnel to
return personal property confiscated from Rome and also to appoint
a monitor to insure that disciplinary proceedings were not
maliciously instituted against Rome. Rome requested consideration
of an emergency temporary restraining order because he had been
retaliated against as a result of filing the complaint. Rome filed
2
Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980), affirmed
in part and vacated in part,
679 F.2d 1115, amended in part and
vacated in part,
688 F.2d 266 (5th Cir. 1982), cert. denied,
460
U.S. 1042 (1983).
3
Guajardo v. Estelle, 568 F. Supp. 1354, 1368 (S.D. Tex.
1983).
2
a second request for emergency consideration of his TRO, requesting
that the court order prison officials to provide him with access to
the law library and to insure that his mail is sent from the
prison. The district court denied Rome's request for a TRO,
including his request for emergency consideration. The magistrate
judge sent a questionnaire to Rome on April 26, 1995, concerning
the claims raised in his complaint and amended complaint and
directed Rome to file a response within 30 days of receipt of the
questions. On June 13, 1995, the magistrate judge recommended that
Rome's complaint be dismissed for failure to prosecute his claim
because he had failed to file a response to the questionnaire. The
magistrate judge stated in a footnote that the questionnaire had
not addressed Rome's argument that his constitutional rights were
violated by his being compelled to attend school because the claim
was patently frivolous. The magistrate also determined that Rome's
request for injunctive relief, based on the conditions of
confinement at the Venus facility, was moot because he had been
transferred to the Lynaugh Unit.
Rome filed objections to the recommendation, arguing that this
court is in error in determining that prison officials may require
inmates to work without violating their constitutional rights.
Rome also argued that the magistrate judge did not consider his
request that he be given 60 days to communicate with the "other
plaintiff" before filing an answer. The district court adopted the
magistrate judge's recommendation and dismissed the complaint
pursuant to Rule 41(b).
3
II.
A.
Rome argues that the district court abused its discretion in
not granting his request for a 60-day delay in which to respond to
the questionnaire and that the district court should not have
dismissed his complaint for want of prosecution because he sought
to obtain records of the disciplinary action against him at the
Venus facility so that he could respond to the questionnaire.
We find that the dismissal of Rome's case was justified by his
failure to respond in any form to the magistrate judge's
questionnaire and by his contumacious behavior toward the court.
Rome asserted in his objections to the magistrate judge's
recommendation of dismissal that he had requested a 60-day delay to
answer the questionnaire and that he did not file answers to the
questionnaire because he wished to communicate with "other
plaintiffs" who apparently were transferred to another unit.
However, neither of these assertions is supported by the record
which includes no request for more time to respond to the
questionaire and lists only Rome as the named plaintiff (although
Rome appears to seek relief on behalf of all inmates who are
subject to unconstitutional conditions at the Venus facility).
Rome did not and still has not provided the court with a reasonable
explanation for failing to file timely answers to the questionnaire
and certainly should have attempted to do so after receiving the
magistrate judge's recommendation. "[I]f the refusal to comply
[with a court order] results from honest confusion or sincere
4
misunderstanding of the order, the inability to comply, or the
nonfrivolous assertion of a constitutional privilege" would render
a dismissal with prejudice an abuse of discretion. Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 749 (5th Cir.
1987). Rome's failure to respond to the questionnaire does not
appear to arise from confusion on his part or from a genuine
inability to respond.
Further, from the tone of Rome's pleadings, he has aptly
characterized himself as a "belligerent claimant." While his case
was pending, Rome wrote to the clerk of this court complaining
about federal judges upholding unconstitutional state laws. He
also threatened to sue "the next Judge who Denies His/Her mandate
denying their Constitutional responsibilities, abusing their
authority and discretion." In another letter to the magistrate
judge, Rome again threatened further litigation if the court did
not correct its abuses of discretion in connection with his case.
Finally, Rome has made no effort to respond to the questionnaire
which the magistrate judge specifically tailored to the claims made
in his complaint. Rome's lack of respect toward the district court
and disregard of its orders justified the imposition of the harsh
sanction of dismissal. See Brinkmann, 813 F.2d at 750 ("shrill and
blustery litigant" was not likely to be controlled by the
imposition of a sanction less than dismissal with prejudice).
B.
Although the magistrate judge recommended the dismissal of the
complaint, he also recommended that Rome's claim that he could not
5
be compelled to attend school be dismissed as frivolous under 28
U.S.C. § 1915(d). Rome argues that inmates cannot be compelled to
work or attend school because they are merely sentenced to
confinement under Texas law. Rome acknowledges that this court has
held otherwise, see Mikeska v. Collins, 900 F.2d 833, 837 (5th Cir.
1990), opinion withdrawn and superseded on reh'g on jurisdictional
grounds,
928 F.2d 126 (5th Cir. 1991), but argues that the court is
retroactively applying such law in violation of the Texas
Constitution.
An in forma pauperis complaint may be dismissed as frivolous
under § 1915(d) if it lacks an arguable basis in law or in fact.
Denton v. Hernandez, 504 U.S. 25, 31 (1992). This court reviews a
§ 1915(d) dismissal under the abuse-of-discretion standard.
Id. at
33.
In Wendt v. Lynaugh, 841 F.2d 619, 620 (5th Cir. 1988), the
plaintiff inmate also argued that, under Texas law, a prisoner is
sentenced to confinement only and may not be compelled to perform
labor. The court rejected this argument, determining that there is
Texas statutory authority for requiring inmates to work and also
that the "`Thirteenth Amendment is inapplicable where involuntary
servitude is imposed as punishment for crime.'"
Id. (citation
omitted). The district court correctly dismissed as frivolous
Rome's claim that it was unconstitutional for prison officials to
force him to attend school.
6
C.
Rome's claim to enjoin the officials of the Venus facility
from taking disciplinary action against him in retaliation for his
refusal to attend school and his legal activities is moot because
Rome was transferred from the Venus facility to the Lynaugh Unit
while his action was pending in the district court. See Rocky v.
King, 900 F.2d 864, 867 (5th Cir. 1990) (inmate's claim for
injunctive and declaratory relief concerning conditions in the
prison field became moot when he was removed from the field). The
district court, therefore, correctly dismissed Rome's claims for
injunctive relief concerning conditions at the Venus facility.4
AFFIRMED.
4
Rome raises a number of additional issues for the first
time on appeal, which we decline to consider. He also seeks the
appointment of counsel. No "exceptional circumstances" are
presented by this appeal that merits appointment of counsel and we
deny this request. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th
Cir. 1982).
7
