Rose v. Peterson ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 95-20366
(Summary Calendar)
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HERMAN ROSE,
Plaintiff-Appellant,
versus
JERRY R. PETERSON, Warden; B. DAVIDSON; DAVID
MOSKOWITZ; and THREE UNKNOWN DOCTORS -- JOHN
SEALY HOSPITAL,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(CA-H-93-923)
_____________________________________________
(October 5, 1995)
Before GARWOOD, WIENER and PARKER, Circuit Judges.
Per curiam:*
Appellant Herman Rose (“Rose”) appeals from the district
court’s order dismissing his lawsuit against various employees of
the Texas Department of Criminal Justice -- Institutional Division
(“TDCJ-ID”). We affirm.
*
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.” Pursuant to that
Rule, the Court has determined that this opinion should not be
published.
THE MERITS
Rose, a Texas prisoner proceeding pro se and in forma pauperis
(“IFP”), filed suit against nearly 20 employees of TDCJ-ID alleging
violations of his Constitutional rights in regard to his medical
conditions, including such issues as choice and timing of medical
treatment, work and housing assignments, and appropriate footwear.
The district court dismissed Rose’s complaint as frivolous pursuant
to 28 U.S.C. § 1915(d). This court reviews a § 1915(d) dismissal
for abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 31
(1992). Having considered Rose’s claims, the record in this case
and the applicable law, we agree that Rose’s claims are frivolous.
We therefore hold that the district court did not abuse its
discretion in dismissing Rose’s claims.
SANCTIONS
Rose is not a stranger to this court. Rose has brought four
other appeals since 1989. In Rose v. Bramhall, No. 89-7067 slip
op. at 2-3 (5th Cir. Feb. 23, 1990) (unpublished), the court
affirmed the district court's dismissal of a suit for failure to
state a claim. Apparently Rose sued a clerk because he was unable
to retrieve copies of records. The court warned that, "Further
filings by Rose of these unsupported complaints will invite
sanctions." Id. at 3.
Rose's other appeals are as follows: Rose v. Obaya, No. 92-
2295 (5th Cir. April 29, 1993) (unpublished) (affirmance of
dismissal of civil rights suit as frivolous); Rose v. Arnold, No.
94-41314 (5th Cir. Augean Calendar)(unpublished)(dismissal of
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appeal of unappealable order); and Rose v. Haynes, No. 89-7062 (5th
Cir. Mar. 12, 1990)(unpublished)(grant of IFP, affirmance in part
and remand in part of civil rights suit).
Because the sanctions warning in Rose v. Bramhall was narrowly
drawn to prohibit further filings regarding the issue in the case
and because Rose's appeal in Rose v. Haynes was--in part--
meritorious, we will not levy sanctions in this appeal.
Nevertheless, because of Rose's recent frivolous appeals, an
additional general warning that the filing of frivolous appeals
will result in sanctions seems appropriate. See Smith v. McCleod,
946 F.2d 417, 418 (5th Cir. 1991); Jackson v. Carpenter, 921 F.2d
68, 69 (5th Cir. 1991). The filing of any further frivolous
appeals will bring into play the entire panoply of sanctions
available to the court, including the imposition of financial
penalties and the limiting of Rose’s access to the judicial system.
Smith, at 418.
AFFIRMED.
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