David Ponder v. Avalon Corrtl Services, Inc., et a ( 2018 )

Case: 17-50695 Document: 00514734846 Page: 1 Date Filed: 11/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-50695 United States Court of Appeals
Fifth Circuit
FILED
November 26, 2018
DAVID E. PONDER,
Lyle W. Cayce
Plaintiff - Appellant Clerk
v.
AVALON CORRECTIONAL SERVICES, INCORPORATED; DONALD E.
SMITH; GREG BASHAM; LOY CERRANO; JEANNIE PARSONS; MAX
GOODALE; BEN LOVELACE,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:14-CV-336
Before JONES, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
David Earl Ponder, a pro se plaintiff, appeals the district court’s
dismissal of his civil case against Avalon Correctional Services, Inc. (“Avalon”),
its founder, and certain of its employees. But Ponder’s brief on appeal is
incomprehensible—it does not describe the alleged legal errors with enough
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50695 Document: 00514734846 Page: 2 Date Filed: 11/26/2018
No. 17-50695
clarity or specificity for Avalon to respond or for this court to weigh in.
Therefore, we must affirm.
Ponder is a former state prisoner who was accommodated at halfway
houses operated by Avalon. Over the course of this litigation, Ponder has
alleged that he was mistreated in various ways by Avalon and its personnel.
The district court identified five general grievances on which Ponder
apparently based his 42 U.S.C. § 1983 claim—(1) Deprivation of liberty
without due process, (2) Causing bodily harm by not calling emergency services
for a medical condition, (3) Destruction of personal property, (4) Retaliation for
filing a formal grievance, and (5) Interference with the mail. The district court
concluded that several of Ponder’s claims were time-barred and that Ponder
did not plead facts or introduce evidence capable of supporting the others.
It is clear from Ponder’s brief on appeal that he is dissatisfied with the
district court’s conclusions, which he refers to as “preposterous.” But
unfortunately, this is where any clarity ends.
Ponder’s brief includes plenty of assertions. “Iqbal first cited by
magistrate in frivolous review.” “Defendants are withholding open records in
violation of Texas law.” “The Plaintiff can and has established by
preponderance of the evidence that the defendants did engage in the acts as
presented by the Plaintiff.” But nowhere in these pronouncements can we
discern an actual legal argument, with record support, challenging the
reasoning provided by the district court for its dismissals. Simply put, neither
we nor Avalon can tell which of the district court’s conclusions Ponder is
challenging or why he thinks those conclusions are wrong.
The Federal Rules of Appellate Procedure set minimum briefing
standards for appellants. They include requirements that the summary of the
argument contain “a succinct, clear, and accurate statement of the arguments
made in the body of the brief” and that the argument outline “appellant’s
2
Case: 17-50695 Document: 00514734846 Page: 3 Date Filed: 11/26/2018
No. 17-50695
contentions and the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies” and “a concise statement of
the applicable standard of review” for “each issue.” Fed. R. App. P. 28(a). While
this court may liberally construe a pro se appellant’s appeal, we will not search
the record and related caselaw to create arguments on an appellant’s behalf.
See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (noting that while
even in the criminal context “we construe pro se pleadings liberally, pro se
litigants, like all other parties, must abide by the Federal Rules of Appellate
Procedure”).
“In the absence of logical argumentation or citation to authority, we
decline to reach the merits of these claims.” Meadowbriar Home for Children,
Inc. v. Gunn, 81 F.3d 521, 532 (5th Cir. 1996). And for good reason—when
Ponder failed “to articulate any appellate argument” he deprived Avalon and
its personnel “of their opportunity to address fully all the issues and prejudiced
their ability to prepare and present arguments to this Court.” Grant v. Cuellar,
59 F.3d 523, 525 (5th Cir. 1995). We AFFIRM.
3