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 2021-07

Simms v. Preston E. Smith Med Dept ( 2021 )


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  • Case: 20-10782     Document: 00515958206         Page: 1     Date Filed: 07/29/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 20-10782                            July 29, 2021
Lyle W. Cayce
Amos Lott Simms,                                                           Clerk
Plaintiff—Appellant,
versus
Preston E. Smith Medical Department; Mrs. NFN Runge,
Supervisor; Ms. NFN Morales,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:19-CV-100
Before Stewart, Haynes, and Ho, Circuit Judges.
Per Curiam:*
Amos Lott Simms, Texas prisoner # 2171652, moves for leave to
appeal in forma pauperis (IFP) the dismissal of his
    42 U.S.C. § 1983
    complaint as moot and the denial of his Federal Rule of Civil Procedure 59(e)
motion. By moving to proceed IFP in this court, Simms challenges the
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10782      Document: 00515958206           Page: 2     Date Filed: 07/29/2021
No. 20-10782
district court’s certification that his appeal is not taken in good faith. See
Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997). Our inquiry “is limited to
whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983)
(internal quotation marks and citations omitted).
We review legal questions relating to mootness de novo. Ctr. for
Biological Diversity, Inc. v. BP Am. Prod. Co.,
    704 F.3d 413
    , 421 (5th Cir. 2013).
Smith’s complaint sought only injunctive relief in the form of medical
attention against the Preston E. Smith Unit Medical Department and Ms.
Campos and Mrs. Runge, employees at the Smith Unit. The transfer of
Simms from the Smith Unit to the Nathaniel J. Neal Unit, when there is no
expectation that he will be transferred back, rendered his claim for injunctive
relief moot. See Oliver v. Scott,
    276 F.3d 736
    , 741 (5th Cir. 2002). He does
not deny that he has been transferred out of the Smith Unit with no
expectation of returning or that he sought only injunctive relief. To the
extent that Simms argues that the magistrate judge should have granted him
leave to add “Texas Tech University Medical Branch” as a defendant
through his Rule 59(e) motion, he fails to show an abuse of discretion. See
Rosenzweig v. Azurix Corp.,
    332 F.3d 854
    , 864 (5th Cir. 2003). He has failed
to identify any issue of arguable merit. See Howard,
    707 F.2d at 220
    .
Accordingly, Simms’s motion for leave to proceed IFP is DENIED,
and his appeal is DISMISSED as frivolous. See 5th Cir. R. 42.2. This
dismissal counts as a strike for purposes of § 1915(g). See Adepegba v.
Hammons,
    103 F.3d 383
    , 388 (5th Cir. 1996), abrogated in part on other grounds
by Coleman v. Tollefson,
    575 U.S. 532
    , 537 (2015). Additionally, a dismissal by
the district court in another case counts as a strike even though Simms’s
appeal from that dismissal is currently pending. See Coleman, 575 U.S. at 534,
537; Simms v. Law Library Staff, Preston E. Smith Unit, 5:19-CV-204 (N.D.
Tex. June 12, 2020). Simms is WARNED that, if he accumulates a third
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Case: 20-10782     Document: 00515958206           Page: 3   Date Filed: 07/29/2021
No. 20-10782
strike, he may not proceed IFP in any civil action or appeal while he is
incarcerated or detained in any facility unless he is in imminent danger of
serious physical injury. See § 1915(g).
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