     Case: 12-51068   Document: 00512501280    Page: 1   Date Filed: 01/15/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                No. 12-51068
                                                                January 15, 2014
                                                                  Lyle W. Cayce
MARK DAVID SIMMONS,                                                    Clerk

                                         Plaintiff-Appellant

v.

HAYS COUNTY SHERIFF’S DEPARTMENT, 22nd District; JOHN
CAVENAUGH; INSPECTOR BRUCE BOARDMAN; JAMIE PAGE; JOHN
CHUDLEIGH,

                                         Defendants-Appellees

_________________________________________________________________________

Consolidated w/ 13-50290

MARK DAVID SIMMONS,

                                          Plaintiff-Appellant

v.

JESSE HERNANDEZ; SUSAN HENRY; GARY CUTLER; BRAD ROBINSON;
JULIE VILLALPONDO,

                                          Defendants – Appellees



                Appeals from the United States District Court
                      for the Western District of Texas
                           USDC No. 1:11-CV-343
                           USDC No. 1:11-CV-976
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                         No. 12-51068 cons w/ No. 13-50290

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
             Mark David Simmons, now Texas prisoner # 01775527, appeals the
summary judgments granted by the district court in two civil rights cases that
he filed against various officials and employees of the Hays County jail,
alleging that the defendants violated his constitutional rights while he was a
pretrial detainee at the jail. Simmons’s motion to consolidate the cases on
appeal is GRANTED. To the extent, however, that Simmons attempts to
incorporate pleadings he filed in the district court by reference into his
appellate briefs, he may not do so. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993). In addition, we do not consider claims raised in his briefs
concerning his criminal case, the alleged ineffective assistance of his trial
counsel and appellate counsel in his criminal case, or actions taken by the
Texas Department of Criminal Justice (TDCJ) since his post-conviction
incarceration as those claims were not the subject of the instant civil rights
suits.
         We review the grant of a motion for summary judgment de novo. Xtreme
Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009).
Summary judgment is appropriate if the record discloses “that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law.” FED R. CIV. P. 56(a).
         Simmons sued the defendants named in his first 42 U.S.C. § 1983 suit
only in their individual capacities.             Accordingly, Simmons’s allegations
concerning three detainees’ deaths at the jail in an apparent attempt to
establish an unconstitutional custom or policy on the part of the jail need not



         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.

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                      No. 12-51068 cons w/ No. 13-50290

be considered. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). In addition,
to the extent that Simmons’s request for “reprimands” for the defendants can
be construed as a request for declaratory or injunctive relief, that request has
been rendered moot by his transfer from the Hays County jail to TDCJ. See
Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001). Because Simmons has
not addressed the dismissal of his claim against the Hays County Sheriff’s
Office, any challenge to that dismissal has been abandoned. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Yohey, 985 F.2d at 224-25.
      In his first civil rights suit, Simmons claimed that the defendants
violated the First and Fourteenth Amendments by attempting to hydrate him
with intravenous fluids while he was on a hunger strike to protest jail
conditions; violated his right to access to courts; denied him adequate medical
care; subjected him to unconstitutional conditions of confinement; and
subjected him to excessive force. The district court did not err in finding that
the defendants were qualifiedly immune with respect to those claims.
See Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013); Thompkins v. Belt, 828
F.2d 298, 304 (5th Cir. 1987); Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.
1983).   Because Simmons fails to address the district court’s reasons for
granting summary judgment with respect to his claim that Sheriff Deputy
Bobby Ramirez used excessive force against him, that claim has been
abandoned. Haines, 404 U.S. at 520-21; Yohey, 985 F.2d at 224-25.
      The district court also granted summary judgment with respect to
Simmons’s second civil rights suit, which sought punitive damages and
reprimands for the defendants, after considering whether the defendants
named in that suit were liable in either their individual or official capacities.
The Eleventh Amendment bars Simmons’s suit for damages, however, against
officials in their official capacity, Oliver v. Scott, 276 F.3d 736, 743 (5th Cir.
2002), and, for the reason noted above, any request by Simmons for declaratory

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                      No. 12-51068 cons w/ No. 13-50290

or injunctive relief has been rendered moot. Accordingly, we consider only
whether the district court erred in granting the defendants’ summary
judgment motion with respect to Simmons’s claims against them in their
individual capacities for punitive damages. Under our precedent, “punitive
damages may be awarded [to a civil rights plaintiff] only when the defendant’s
conduct is motivated by evil intent or demonstrates reckless or callous
indifference to a person’s constitutional rights.” Williams v. Kaufman County,
352 F.3d 994, 1015 (5th Cir. 2003).
      Notably, Simmons fails to address or fails to adequately brief the district
court’s reasons for denying his claims for relief based upon his assertions and
arguments that prison officials were opening and copying his legal mail and e-
mail, that female officers were able to observe him in administrative
segregation on video-surveillance cameras, that his right to equal protection
was violated, and that his administrative segregation cell was not compliant
with the Americans with Disabilities Act. Accordingly, those claims have been
abandoned. See Haines, 404 U.S. at 520-21; Yohey, 985 F.2d at 224-25. As
Simmons also does not address the dismissal of Judge Bill Henry from the
second suit, any challenge to the dismissal of Judge Henry has been
abandoned. See Haines, 404 U.S. at 520-21; Yohey, 985 F.2d at 224-25.
      Our review of the summary judgment record confirms that the district
court was correct in concluding that the defendants named in Simmons’s
second civil rights suit were qualifiedly immune from the punitive damages
claims against them. See Williams, 352 F.3d at 1015; see also Farmer, 511 U.S.
at 847; Baranowski v. Hart, 486 F.3d 112, 124 (5th Cir. 2007); Woods v. Smith,
60 F.3d 1161, 1166 (5th Cir. 1995); Thompkins, 828 F.2d at 304; Thompson,
709 F.2d at 382. Accordingly, the district court’s summary judgments are
affirmed.



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                      No. 12-51068 cons w/ No. 13-50290

      We note that while Simmons’s appellate brief in No. 13-50290 addresses
some of the claims that were the subject of his second civil rights suit, it also
raises a litany of complaints that are unsupported and, in many instances,
wholly unrelated to this appeal, including derogatory comments about how the
defendants dress for work, matters that predate his incarceration at the Hays
County jail, matters relating to his criminal trial, and events relating to his
post-conviction incarceration at TDCJ. Simmons is warned that future filings
that are deemed frivolous by the district court or this court will result in the
imposition of strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 385-87 (5th Cir. 1996).       He is further warned that if he
accumulates three strikes, he will not be allowed to proceed in forma pauperis
in any civil action while incarcerated or detained unless he is in imminent
danger of serious physical injury. See § 1915(g).
      AFFIRMED; MOTION TO CONSOLIDATE GRANTED.




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