IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20795

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

July 27, 2010

Lyle W. Cayce

Clerk

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. 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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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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