Everett Wills, Jr. v. A. Dinkins, Jr. , 582 F. App'x 520 ( 2014 )

Case: 14-30152 Document: 00512791230 Page: 1 Date Filed: 10/02/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 2, 2014
No. 14-30152
Lyle W. Cayce
Clerk
EVERETT CHARLES WILLS, JR.,
Plaintiff-Appellant
v.
A. L. DINKINS, JR.; MARILYN ROBERSON; D. K. DARBY; STEVE PRATOR,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana, Shreveport
USDC No. 5:12-CV-1976
Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
Everett Charles Wills, Jr., now Louisiana prisoner # 391159, moves for
leave to proceed in forma pauperis (IFP) on appeal to challenge the dismissal
of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i). Wills alleged that the restrictions imposed by his security
status, segregation, handcuffing, and shackling whenever he left his housing
unit, violated his right as a pretrial detainee to be free from cruel and unusual
punishment.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-30152 Document: 00512791230 Page: 2 Date Filed: 10/02/2014
No. 14-30152
When, as in this case, a district court certifies that an appeal is not taken
in good faith under § 1915(a)(3), the appellant may either pay the filing fee or
challenge the court’s certification decision. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997). 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)
(internal quotation marks and citation omitted). If we uphold the district
court’s certification that the appeal is not taken in good faith, the appellant
must pay the filing fee or, alternatively, we may dismiss the appeal sua sponte
under 5th Circuit Rule 42.2 if it is frivolous. Baugh, 117 F.3d at 202 & n.24;
5TH CIR. R. 42.2.
A condition or restriction of pretrial detention that constitutes
punishment implicates the protection against the deprivation of liberty
without due process. Bell v. Wolfish, 441 U.S. 520, 535 (1979). A restriction is
not punitive if it is “reasonably related to a legitimate governmental objective,”
such as “maintaining jail security.” Id. at 539-40. Courts should ordinarily
defer to the expertise of correctional officials. Id. at 540 n.23.
Wills’s security status was based on the amount of his bond, $500,000,
for a charge of second degree murder. He has not raised a nonfrivolous issue
for appeal regarding whether the restrictions were not reasonably related to
the jail’s security interests and therefore punitive, particularly in light of the
factors to be considered in determining the amount of bail and the deference
owed to the correctional officials’ judgment. See Bell, 441 U.S. at 539-40 &
n.23; LA. CODE CRIM. PROC. ANN. art. 334(1), (2), (3), (5). Accordingly, Wills’s
motion for leave to proceed IFP on appeal is denied, and his appeal is dismissed
as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
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Case: 14-30152 Document: 00512791230 Page: 3 Date Filed: 10/02/2014
No. 14-30152
The dismissal of this appeal as frivolous counts as a strike under
§ 1915(g). See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Wills has two other strikes. See Wills v. Davis, et al., No. 5:96-CV-2836
(W.D. La. Mar. 31, 1997); Wills v. Ott, et al., No. 5:96-CV-2879 (W.D. La. Apr.
17, 1997). As Wills has accumulated at least three strikes under § 1915(g), he
may not proceed IFP in any civil action or appeal filed in a court of the United
States while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g). Wills is further
warned that any future frivolous or repetitive filings in this court or any court
subject to this court’s jurisdiction will subject him to additional sanctions.
MOTION DENIED; APPEAL DISMISSED; § 1915(g) BAR IMPOSED.
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