Rose v. Peterson

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Rule, the Court has determined that this opinion should not be
published.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 at 2-3 (5th Cir. Feb. 23, 1990) (unpublished), the court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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