Chavez Price v. Darren Wallace ( 2019 )

Case: 16-41485 Document: 00514878216 Page: 1 Date Filed: 03/19/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41485 FILED
Summary Calendar March 19, 2019
Lyle W. Cayce
Clerk
CHAVEZ D. PRICE,
Plaintiff-Appellant
v.
UP NUNALLY, Captain; UP BORDELON, Lieutenant; DARREN WALLACE;
VIRGIL MCMULLEN; DIRECTOR TEXAS DEPARTMENT OF CRIMINAL
JUSTICE; LANCE KNOD,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:13-CV-677
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
Chavez Daniel Price, Texas prisoner # 821134, appeals the dismissal of
his 42 U.S.C. § 1983 complaint for failure to state a claim. He also moves for
leave to file supplemental briefing, for the appointment of counsel, and for an
“emergency” declaratory judgment. The motions to file supplemental briefing
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41485 Document: 00514878216 Page: 2 Date Filed: 03/19/2019
No. 16-41485
are GRANTED. For the following reasons, we AFFIRM the district court’s
dismissal for failure to state a claim.
In his § 1983 complaint, Price claimed that prison officials denied him a
meal, placed him naked in a “stripped cell,” subjected him to “terroristic
threats,” denied his access to the courts, unlawfully retaliated against him,
used excessive force against him, threatened to sexually assault him, failed to
protect him, failed to properly train staff, recklessly disregarded his safety,
abused their authority, and publicly humiliated him. On appeal, Price renews
his claims, argues that he is being truthful while state officials are lying,
requests monetary compensation, and, with the benefit of liberal construction,
asserts that the district court prematurely dismissed his case for failure to
state a claim and that he should been allowed to obtain discovery and proceed
to the summary judgment stage.
We review the dismissal de novo, applying the same standard as that
under Federal Rule of Civil Procedure 12(b)(6). See Samford v. Dretke, 562
F.3d 674, 678 (5th Cir. 2009); Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.
2005). A complaint fails to state a claim if it lacks “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation and citation omitted). As
to retaliation, Price failed to state a claim. Even with the benefit of liberal
construction, Price’s generalized assertion of retaliation, which did not set
forth a chronology of events from which a retaliatory motive may plausibly be
inferred, was too conclusional. See Woods v. Smith, 60 F.3d 1161, 1166 (5th
Cir. 1995); Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (motion for
summary judgment). At the most basic level, Price has not identified any
protected conduct that prompted the allegedly retaliatory acts.
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Regarding Price’s non-retaliation claims, including (1) the denial of a
meal, (2) inadequate conditions in the stripped cell, (3) excessive force, (4)
threats of assault and other harm, and (5) supervisory liability, the district
court correctly accepted Price’s allegations as true, yet determined nonetheless
that they did not suffice to state a claim of a constitutional violation under
§ 1983. As to Price’s argument that the district court ignored evidence he
submitted after filing his complaint, a consideration of such documents falls
outside the inquiry of whether his complaint fails to state a claim. See Walch
v. Adjutant Gen.’s Dep’t of Texas, 533 F.3d 289, 293 (5th Cir. 2008). To the
extent that Price otherwise attempts to challenge the district court’s dismissal
of his non-retaliation claims for failure to state a claim, he has not adequately
briefed any such challenge. Even though a pro se litigant benefits from liberal
construction, he still must adequately brief his arguments. See Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). When an appellant fails to
identify any error in the district court’s analysis, it is the same as if the
appellant had not appealed that issue. Brinkmann v. Dallas Cty. Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Even liberally construed,
aside from Price’s arguments that the district court (1) failed to accept his
allegations as true and (2) ignored evidence he submitted, Price has not
adequately briefed any challenge to the district court’s dismissal of his non-
retaliation claims, See Yohey, 985 F.2d at 224–25; Brinkmann, 813 F.2d at 748.
The motions for appointment of counsel and for an “emergency”
declaratory judgment are DENIED.
Additionally, we note Price’s litigious history, including his numerous
lawsuits related to his incarceration. Cf. Moody v. Miller, 864 F.2d 1178, 1179
n.1 (5th Cir. 1989). Our affirmance and the district court’s underlying
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dismissal count as one strike under 28 U.S.C. § 1915(g). 1 See § 1915(g);
Adepegba v. Hammons, 103 F.3d 383, 387–88 (5th Cir. 1996). Price is
WARNED that if he accumulates three strikes, he will not be allowed to
proceed in forma pauperis in any civil action or appeal unless he is under
imminent danger of serious physical injury. See § 1915(g).
1 Even though the district court’s dismissal in one of Price’s prior lawsuits, TXSD 3:12-
cv-00312, cited § 1915(e)(2)(B) in its dismissal order, its ruling was centered on Price’s failure
to exhaust. Because it is not clear that the district court dismissed that prior action entirely
on grounds that the lawsuit was frivolous or malicious, that prior dismissal does not count
as a strike. See Brown v. Megg, 857 F.3d 287, 290 (5th Cir. 2017).
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