Moreno v. Curry ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 20, 2007
No. 06-11277
Summary Calendar Charles R. Fulbruge III
Clerk
RICKY GUEVARA MORENO
Plaintiff-Appellant
v.
TIM CURRY, in his individual and official capacity; PATRICK S DOHONEY, in
his/her individual capacity; PATRICIA HATLEY, in his/her individual capacity;
DEBRA DUPONT, in his/her individual capacity; ASHLEY D FOURT, in his/her
individual capacity; C JAMES GIBSON, in his/her individual capacity; HAL
SPAUGH, in his/her individual capacity; DON CARPENTER, in his/her
individual capacity; DAVID WILLIAMS, in his/her individual capacity; DEE
ANDERSON, in his/her individual capacity; THOMAS A WILDER, in his/her
individual capacity; JOHN CORNYN, in his/her individual capacity
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CV-238
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Ricky Guevara Moreno, Texas prisoner # 501109, appeals from the district
court’s dismissal of his pro se suit as frivolous and for failure to state a claim
*
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should not be published and is not precedent except under the limited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.
No. 06-11277
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i), (ii), and 1915A(b), and alternatively,
pursuant to 42 U.S.C. § 1997e(e). De novo review applies to the district court’s
dismissal. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
Moreno argues that the district court erred in determining that his claims
were barred pursuant to Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Moreno’s claims were based on the denial of access to records that allegedly
would demonstrate the commission of perjury by his counsel during criminal
proceedings. Moreno has not shown that the district court’s dismissal of his
claims pursuant to Heck was erroneous. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (recognizing that failure
to identify an error in district court’s reasoning is effectively the same as not
appealing judgment). Moreno contends that his claims were based on the denial
of his right of access to the courts resulting from Texas officials’ denial of his
records requests and falsification of records. Moreno’s right of access to the
courts was not implicated by his alleged difficulty in acquiring records where
Moreno was able to file a legally sufficient claim without impediment. See Foster
v. City of Lake Jackson, 28 F.3d 425, 429-30 (5th Cir. 1994).
Moreno also argues that the district court erred in dismissing his claims
brought under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Moreno
has failed to identify an error in the district court’s determination that FOIA, by
its terms, does not apply to state or municipal agencies. See Brinkmann, 813
F.2d at 748; see also Wright v. Curry, 122 F. App’x 724, 725 (5th Cir. 2004).
Moreno argues that the district court erred in dismissing his claims
brought under the Racketeer Influenced and Corrupt Organizations Act (RICO),
18 U.S.C. §§ 1961, 1962, and 1964. The district court reasoned that Moreno did
not allege injury to his business or property as required under § 1964(c). Moreno
submits on appeal that his personal income has been injured due to a child
support judgment, or demand, by Texas Attorney General John Cornyn. A RICO
plaintiff is required to show that the alleged racketeering activity was both the
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No. 06-11277
“but for” and proximate cause of the injury to his business or property. Holmes
v. Sec. Investor Prot. Corp., 503 U.S. 258, 268 (1992). Moreno has not shown the
requisite causal relationship between his child support obligation and the
defendants’ alleged predicate acts of mail fraud and obstruction of justice. See
id.
Moreno argues that the district court erred in concluding that he was not
entitled under Texas law to the records he sought. The district court correctly
reasoned that under TEX. GOV’T CODE § 552.028(a) of the Texas Public
Information Act, Texas governmental agencies are not required to accept or
comply with records requests from prisoners or their agents, other than
prisoners’ attorneys. While § 552.028 did not take effect until June 5, 1995, any
state law claim based on the denial of Moreno’s alleged requests prior to June 5,
1995, was barred by the applicable statute of limitations. See TEX. CIV. PRAC. &
REM. CODE § 16.051. Moreno also contends that the district court failed to
consider whether his agents’ records requests were improperly denied. His
agents’ alleged requests were made after § 552.028 became effective, and Moreno
does not contend that the individuals acting on his behalf acted as his attorney.
Therefore, Texas agencies were not required to accept or comply with the
requests of those individuals. See § 552.028(a)(2).
Moreno asserts that his due process and equal protection rights were
violated with respect to the denial of his records requests. To the extent this
assertion constitutes an attack on the constitutionality of § 552.028, Moreno
“does not have a federally-protected right to a free copy of his transcript or other
court records merely to search for possible error in order to file a petition for
collateral relief at some future date.” Colbert v. Beto, 439 F.2d 1130, 1131 (5th
Cir. 1971).
Moreno argues that the district court erred by dismissing his complaint
without providing him an opportunity to amend his claims. Because Moreno’s
complaint failed to state any perceptibly viable claim or to present any arguable
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No. 06-11277
basis in law or fact, the district court’s dismissal without permitting Moreno an
opportunity to amend his complaint was harmless. See Jones v. Greninger, 188
F.3d 322, 326-27 (5th Cir. 1999); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.
1998).
Moreno argues that the district court erred in finding that all of his claims
accruing before April 3, 2004, failed to satisfy the two-year limitations period
applicable to his claims under 42 U.S.C. § 1983. Moreno argues that the denial
of his records requests constituted a continuing violation. Because the district
court’s decision is affirmed on other grounds, it is not necessary to decide
whether Moreno’s claims constituted a continuing violation. See Pete v. Metcalf,
8 F.3d 214, 218 (5th Cir. 1993); see also Sojourner T v. Edwards, 974 F.2d 27, 30
(5th Cir. 1992) (recognizing that this court may affirm on any grounds supported
by the record).
Moreno has not briefed any challenge to the district court’s dismissal on
the basis of § 1997e(e). Moreno also does not challenge the district court’s
determination that 18 U.S.C. §§ 1341, 1503, 1506, and 1511 do not themselves
create a private right of action. Therefore, Moreno has waived appellate review
of these determinations. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993);
Brinkmann, 813 F.2d at 748.
The district court did not err in dismissing Moreno’s complaint as frivolous
and for failure to state a claim. See Geiger, 404 F.3d at 373. Moreno previously
had an action dismissed as frivolous under § 1915(e)(2)(B)(i). Moreno v. Bunton,
No. 2:98-cv-00466 (S.D. Tex. November 17, 1998) (unpublished). His appeal from
that decision was also dismissed as frivolous. Moreno v. Bunton, 193 F.3d 518
(5th Cir. 1999) (unpublished). Given our affirmance of the district court’s
dismissal of the instant suit, Moreno has accumulated at least three strikes for
purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Accordingly, Moreno is now barred from proceeding in forma pauperis in
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No. 06-11277
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. See § 1915(g).
AFFIRMED; 28 U.S.C. § 1915(g) SANCTION IMPOSED.
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