Derrick Carter v. Cornel Hubert , 452 F. App'x 477 ( 2011 )

Case: 11-30255 Document: 00511649589 Page: 1 Date Filed: 10/31/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 31, 2011
No. 11-30255
Summary Calendar Lyle W. Cayce
Clerk
DERRICK CARTER,
Plaintiff-Appellant
v.
CORNEL HUBERT; RAYBURN TEER; DONALD JOHNSON; Captain
PATRICK COCHRAN; Lieutenant CHRISTOPHER SNOWDEN; Lieutenant
JOEL DECUIR; Lieutenant ARTHUR FOSTER; KENNETH STEWART;
Warden LAWRENCE HALL,
Defendants-Appellees
Appeals from the United States District Court
for the Middle District of Louisiana
USDC No. 3:07-CV-614
Before DAVIS, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Derrick Carter, Louisiana prisoner # 337492, has moved for leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C.
§ 1983 complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56.
The district court denied Carter IFP status on appeal and certified that the
appeal was not taken in good faith.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30255
By moving for leave to proceed IFP, Carter is challenging the district
court’s certification that the appeal is not taken in good faith. Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). On appeal, Carter argues that the district
court erred in (1) dismissing his unconstitutional conditions of confinement
claims; (2) denying his motion for reconsideration of imposing full sanctions on
the defendants and their counsel; and (3) granting summary judgment on his
First Amendment claim while also failing to address his request for declaratory
relief. Carter has not shown that he will raise a nonfrivolous issue on appeal.
We review the grant of a motion to dismiss pursuant to Rule 12(b)(6)
de novo. Lampton v. Diaz, 639 F.3d 223, 225 (5th Cir. 2011). Although we
accept the plaintiff’s allegations as true, to survive a Rule 12(b)(6) dismissal, the
complaint must contain “sufficient factual matter . . . to state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007)). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the
pleader is entitled to relief.’” Id. at 1950 (quoting FED. R. CIV. P. 8(a)(2)).
In regard to his unconstitutional conditions of confinement claims that his
placement in a restrictive cell program for seven days at a time, for a total of 26
days, resulted in a lack of exercise, deprivation of meals, and flu-like symptoms
due to a severely cold cell, Carter has not demonstrated that prison officials
violated his Eighth Amendment rights. See Hernandez v. Velasquez, 522 F.3d
556, 559-61 (5th Cir. 2008); Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999);
Talib v. Gilley, 138 F.3d 211, 214 & n.3 (5th Cir. 1998); Davis v. Scott, 157 F.3d
1003, 1006 (5th Cir.1998); Ruiz v. Estelle, 679 F.2d 1115, 1152 (5th Cir.1982),
amended in part, vacated in part on other grounds, 688 F.2d 266 (5th Cir.1982).
In particular, Carter does not allege any deprivation that “‘result[ed] in the
denial of the minimal civilized measure of life’s necessities.’” Palmer v. Johnson,
193 F.3d 346, 352 (5th Cir. 1999) (quoting Farmer v. Brennan, 511 U.S. 825, 832
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(1994) (internal quotation marks and citations omitted)). Nor has Carter
demonstrated that prison officials acted with deliberate indifference to his
health or safety. Id.Carter has abandoned the issue of whether the district court abused its
discretion in denying his motion for reconsideration of sanctions because he does
not challenge the district court’s denial of the motion as untimely. See Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993) (noting that contentions not
adequately argued in the body of the brief are deemed abandoned).
We review a district court’s grant of summary judgment de novo. Nickell
v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Carter has not
demonstrated that the district court erred in granting summary judgment on his
First Amendment claim that the defendants denied him the right to freely
exercise his religion by confiscating his Bible and other religious pamphlets
because he does not allege that he suffered a physical injury that was more than
de minimis. See 42 U.S.C. § 1997e(e); Mayfield v. Texas Dep’t of Criminal
Justice, 529 F.3d 599, 605-06 (5th Cir. 2008); see also Geiger v. Jowers, 404 F.3d
371, 374-75 (5th Cir. 2005) (extending physical injury requirement to First
Amendment claims); Alexander v. Tippah Cnty. Miss., 351 F.3d 626, 631 (5th
Cir. 2003) (noting that the alleged physical injury must be more than
de minimis). Moreover, because the program at issue had been eliminated and
Carter was no longer housed in the same prison unit, the district court did not
err in determining that Carter’s requests for injunctive and declaratory relief
were moot. See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (holding
that transfer from unit rendered a prisoner’s claims for declaratory and
injunctive relief moot)
Because Carter has not demonstrated that the district court erred in
certifying that his appeal is not taken in good faith, we deny his IFP motion and
dismiss his appeal as frivolous. See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202
& n.24; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Our dismissal of this
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appeal as frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Carter is warned
that, if he accumulates three strikes pursuant to § 1915(g), he may not proceed
IFP in any civil action or appeal filed while he is incarcerated or detained in any
facility unless he “is under imminent danger of serious physical injury.”
§ 1915(g).
APPEAL DISMISSED; IFP MOTION DENIED; SANCTION WARNING
ISSUED.
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