Triplett v. LeBlanc

642 F. App'x 457
Court of Appeals for the Fifth Circuit·Decided April 4, 2016·No. No. 15-30243·Published·Cited by 12 cases

Opinion

STEPHEN A. HIGGINSON, Circuit Judge: *

Willie Triplett brought suit in district court alleging violations of 42 U.S.C. §§ 1983, 1985, and 1986, the First, Sixth, Eighth, and Fourteenth Amendments, the Americans with Disabilities Act, and a due process violation under Louisiana law. Prior to this appeal, the district court: (1) declined to exercise supplemental jurisdiction over Triplett’s state law claims; (2) dismissed Triplett’s claims against defendant St. Cyr without prejudice for failure to serve her within 120 days as mandated by Federal Rule of Civil Procedure 4(m); and (3) granted the defendants’ Rule 12(b)(6) motion, dismissing Triplett’s suit. In response, Triplett moved for leave to proceed in forma pauperis. The district court denied his motion and certified that Triplett’s appeal was not taken in good faith. Triplett now moves this court for leave to proceed in forma pauperis to appeal the dismissal of his complaint.

When a district court certifies that an appeal is not taken in good faith, the appellant may either pay the filing fee or challenge that decision. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997). Triplett challenges the decision. Our inquiry into an appellant’s good faith “is limited to whether the appeal involves ‘legal points arguable on their merits (and therefore not frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir.1983) (quoting Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)). If we uphold the district court’s decision, the appellant must pay the filing fee to continue. Alternatively, if the appeal is frivolous, we may dismiss it sua sponte. 5th Cir. R. 42.2; Baugh, 117 F.3d at 202 & n. 24. Here, Triplett raises myriad issues — several intertwined: we attempt to address each issue below.

As an initial matter, Triplett correctly argues that because the defendants filed their Rule 12(b)(6) motion after they filed their answer to his suit, the district court’s dismissal was on the pleadings, pursuant to Rule 12(c). See Rule 12(b); Brunig v. Clark, 560 F.3d 292, 294 (5th Cir.2009). Nevertheless, Triplett fails to raise a non-frivolous issue because this court reviews Rule 12(c) dismissals de novo, applying the same standards as those governing Rule 12(b)(6). Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir.2015). Under either 12(b)(6) or 12(c), this court takes Triplett’s well-pleaded facts as true and views them in the light most favorable to him. Id. To survive a motion to dismiss, Triplett’s complaint had to “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

Triplett’s first argument, that the district court erred when it dismissed his claims against St. Cyr, is frivolous. An IFP plaintiff who requests service on the proper defendant “should not be penalized for failure of the Marshal’s Service to [460] properly effect service of process, where such failure is through no fault of the litigant.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir.1987). Nevertheless, once such a plaintiff is aware of possible defects in service of process, he must attempt to remedy them. Id. Triplett does not assert that he had no notice-of the Marshal’s inability to serve St. Cyr. In fact, despite notice from the magistrate judge’s report and recommendation, Triplett did not take steps to remedy the defects in service of process. Thus, Triplett fails to show a nonfrivolous appellate issue with respect to the dismissal of St. Cyr. See Armant v. Stalder, 351 Fed.Appx. 958, 959 (5th Cir.2009).

The allegations surrounding Triplett’s disciplinary conviction fail to state a federal due process claim because he was not deprived of a liberty or property interest. See Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). The punishments Triplett alleged that he received as a result of his disciplinary conviction—demotion in trustee status, time in a working cell block, and the loss of his prison job as a minister—“are penalties which do not represent the type of atypical, significant deprivation in which a state might create a liberty interest.” Madison v. Parker, 104 F.3d 765, 768 (5th Cir.1997). And he has abandoned any argument that his disciplinary hearing violated the Louisiana Constitution because he has not briefed the district court’s refusal to exercise supplemental jurisdiction over these claims. See Brinkmann v. Dall. Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987).

Triplett’s assertions that the defendants were aware of job restrictions that included no prolonged walking, lifting over 25 pounds, working outdoors, and sports, but that they nevertheless punished him by assigning him to prison jobs that required him to walk the tiers and to lift objects in excess of 25 pounds, fail to state an Eighth Amendment claim because his facts do not support a claim that the defendants were deliberately indifferent to his medical needs. See Farmer v. Brennan, 511 U.S. 825, 837, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). His assertions about injuries he sustained by having to climb in and out of a top bunk that lacked safety equipment fail to state an Eighth Amendment claim for the same reason. See id. at 844, 114 S.Ct. 1970. And we have previously held that a showing of mere negligence is not enough to state a constitutional claim. See Coleman v. Sweetin, 745 F.3d 756, 764-65 (5th Cir.2014).

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