Rome v. Scott

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 24, 2004
• Docket: 95-10624
• Status: Unpublished

Opinion

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.

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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 Pursuant to that Rule, the court has determined that this opinion should not be published.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).