IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-51068

MARK DAVID SIMMONS,

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

United States Court of Appeals

Fifth Circuit

FILED

January 15, 2014

Lyle W. Cayce

Clerk

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