     Case: 09-20795     Document: 00511186009          Page: 1    Date Filed: 07/27/2010




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

                                                 FILED
                                                                            July 27, 2010
                                     No. 09-20795
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

DAVID MICHAEL HAINES,

                                                   Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CIRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CV-3118


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        David Michael Haines, Texas prisoner # 1562194, appeals, pro se and in
forma pauperis, the denial of his pro se petition for a writ of mandamus. Haines
initially complained that the Texas Department of Criminal Justice was
violating the consent decree issued by Ruiz v. Estelle, 503 F. Supp. 1265 (S.D.
Tex. 1980), aff’d in part, rev’d in part, 679 F.2d 1115 (5th Cir.), amended in part,
vacated in part, 688 F.2d 266 (5th Cir. 1982) (conditions of confinement). The


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-20795    Document: 00511186009 Page: 2         Date Filed: 07/27/2010
                                 No. 09-20795

district court denied Haines mandamus relief and dismissed his action as
frivolous and for failure to state a claim.
      To the extent that Haines’ “notice of amended appeal” can be construed as
a timely notice of appeal from the district court’s denial of his postjudgment
motions, Haines has failed to address the district court’s finding that it lacked
jurisdiction to consider those motions.       Accordingly, it is as if he has not
appealed the denial of his postjudgment motions. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Haines does not challenge the district court’s concluding that Haines was
not entitled to mandamus relief, and he appears to contend that his petition
should have been construed as a civil-rights complaint. The dismissal of a claim
as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) is reviewed for abuse of discretion,
and a dismissal for failure to state a claim under § 1915(e)(2)(B)(ii) is reviewed
de novo, using the same standard applicable to dismissals pursuant to Federal
Rule of Civil Procedure 12(b)(6). Black v. Warren, 134 F.3d 732, 733 (5th Cir.
1998).
      The district court considered construing Haines’s petition as a civil-rights
complaint but correctly determined that violations of the Ruiz decree, without
more, are not cognizable in a 42 U.S.C. § 1983 action. See Green v. McKaskle,
788 F.2d 1116, 1124 (5th Cir. 1986). To the extent Haines asserts that his
claims of excessive force, denial of medical treatment, and denial of access to
courts are cognizable under § 1983, his brief does not establish either when those
violations occurred or how any of the named defendants were involved with, or
responsible for, those claimed violations. As he has failed to adequately brief
those claims, they are abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993); Brinkmann, 813 F.2d at 748.         Moreover, although Haines
attempts to incorporate contentions raised in district court into his appellate
brief by reference, he may not do so. See Yohey, 985 F.2d at 224-25.



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   Case: 09-20795      Document: 00511186009 Page: 3    Date Filed: 07/27/2010
                                   No. 09-20795

      Haines’ claims that he should have been allowed to amend his petition do
not demonstrate reversible error. He moved one time before the final judgment
was entered to amend. Haines did not, however, seek to amend his petition to
raise cognizable claims under § 1983.      The district court did not abuse its
discretion in denying the motion. See Whitaker v. City of Houston, 963 F.2d 831,
836 (5th Cir. 1992).
      AFFIRMED.




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