Wanzer v. Rayford ( 2023 )

Case: 22-50163 Document: 00516684966 Page: 1 Date Filed: 03/22/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50163
Summary Calendar FILED
____________ March 22, 2023
Lyle W. Cayce
Jerry Wanzer, Clerk
Plaintiff—Appellant,
versus
Phonso J. Rayford, Senior Warden, John B. Connally Unit, sued in
their individual and official capacity; John A. Marcum, Asst. Warden,
John B. Connally Unit, sued in their individual and official capacity; Frank
Stengel; Veolia North America; Gary Wagner, Water
Treatment Plant Superintendent, sued in their individual and official capacity;
Kelly L. Kotzur, Food Kitchen Captain, John B. Connally Unit, sued in
their individual and official capacity; Kathy S. Akin, Food Kitchen
Captain, John B Connally Unit, sued in their individual and official capacity;
Debra Gloor, Senior Practice Manager, John D. Connally Unit, In Her
Individual and Official Capacities; Bobby Lumpkin, Director, Texas
Department of Criminal Justice, Correctional Institutions Division; Owen
Murray, UTMB Director, In His Individual and Official Capacities;
Brian Wong, M.D., In His Individual and Official Capacities; Sylvia
Peterson, Law Library Supervisor, John B. Connally Unit, sued in their
individual and official capacity; Roberto Alexandre, Captain, John D.
Connally Unit, In His Individual and Official Capacities; FNU Wolf, Lt.,
John B. Connally Unit, sued in their individual and official capacity; Dixie
Rojas, Lieutenant, John D. Connally Unit, In Her Individual and Offical
Capacities; Pauline Dancy, Lt., John B. Connally Unit, sued in their
individual and official capacity; Sierra Woleslagle, Lieutenant, John
D. Connally Unit, In Her Individual and Official Capacities,
Defendants—Appellees.
Case: 22-50163 Document: 00516684966 Page: 2 Date Filed: 03/22/2023
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CV-779
______________________________
Before Higginbotham, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Jerry Wanzer, Texas prisoner # 00855976, moves for leave to proceed
in forma pauperis (IFP) on appeal from the district court’s dismissal of his
pro se 42 U.S.C. § 1983 complaint. We deny his motion and dismiss his
appeal.
A prisoner who, like Wanzer, has previously filed at least three civil
actions and appeals that were dismissed as frivolous may only proceed IFP
before this court if he is “under imminent danger of serious physical injury.”
28 U.S.C. § 1915(g). Our court previously determined that Wanzer’s
“allegations warrant a determination that he is under imminent danger of
serious physical injury,” and we remanded his case to the district court for
further proceedings. Wanzer v. Rayford, 832 F. App’x 319, 320 (2020) (per
curiam). On remand, the district court dismissed his complaint. Wanzer
timely filed a notice of appeal and sought leave from the district court to
proceed IFP on appeal. The district court denied Wanzer’s application to
proceed IFP, certifying that Wanzer’s appeal was not taken in good faith
because he “failed to set forth any viable argument.” See 28 U.S.C.
§ 1915(a)(3) (“An appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good faith.”).
Wanzer now moves in this court to proceed IFP, effectively
challenging the district court’s certification that his appeal is not taken in
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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good faith. See Baugh v. Taylor, 117 F.3d 197, 201–02 (5th Cir. 1997); see also
Fed. R. App. P. 24(a)(5). Where “a district court certified that an appeal
was not taken in good faith [because] the underlying claims of the IFP
plaintiff were entirely frivolous and had no possibility of success,” “[t]he
merits of the suit [are] . . . inextricably intertwined with the certification
decision.” Baugh, 117 F.3d at 201–02.
This court reviews de novo dismissals for failure to state a claim under
28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1), applying the same standard as
when reviewing the grant of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). DeMoss v. Crain, 636 F.3d 145, 152 (5th Cir. 2011).
Dismissal is appropriate where a complaint does not “contain 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) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough
to raise a right to relief above the speculative level on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).” Twombly,
550 U.S. at 555 (internal citations and footnote omitted). “[E]ven for pro se
plaintiffs . . . conclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to state a claim for relief.” Coleman v.
Lincoln Par. Det. Ctr., 858 F.3d 307, 309 (5th Cir. 2017) (internal quotation
marks and citation omitted).
Wanzer fails to demonstrate that the district court erred in
determining that his claims as to Sylvia Peterson and Dr. Brian Wong were
barred by the statute of limitations. Wanzer’s pleadings and the district
court’s summary judgment order in a prior civil action reveal that Wanzer
was aware of the basis of his claims against both Peterson and Dr. Wong more
than two years before he filed the instant complaint. See Tex. Civ. Prac.
& Rem. Code § 16.003(a) (setting out two-year statute of limitations);
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Stringer v. Town of Jonesboro, 986 F.3d 502, 510 (5th Cir. 2021) (stating that
§ 1983 claims accrue and the limitations period begins to run when the
plaintiff becomes aware of the facts underlying the claim). Further, under
Texas law, his appeals of post-judgment motions filed in his prior federal
lawsuit did not toll the limitations period. See Holmes v. Tex. A & M Univ.,
145 F.3d 681, 685 (5th Cir. 1998); see also Hardin v. Straub, 490 U.S. 536, 542
(1989) (explaining that state tolling law applies in § 1983 suits if it is not
inconsistent with federal law or policy).
Wanzer also failed to state a claim that prison officials demonstrated
deliberate indifference to his serious medical needs. To the extent Wanzer
alleged that Debra Gloor failed to investigate or adjudicate his medical
grievances properly, a prisoner has no federally protected liberty interest in
“having [] grievances resolved to his satisfaction.” See Geiger v. Jowers, 404
F.3d 371, 374 (5th Cir. 2005). Further, as the district court determined,
Wanzer’s allegations that Gloor allowed medical staff to disregard his serious
medical needs were conclusory. See Coleman, 858 F.3d at 309. Likewise,
Wanzer’s disagreements with medical professionals who determined that he
did not need treatment or surgery and with Gloor’s related assessments were
insufficient to sustain his deliberate indifference claim. See Domino v. Tex.
Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001).
Regarding Wanzer’s claim that his meals were comprised mostly of
sandwiches, such that prison officials deprived him of food with adequate
nutritional value, his allegations failed to state a claim that he was denied “the
minimal civilized measure of life’s necessities.” Berry v. Brady, 192 F.3d 504,
507 (5th Cir. 1999) (internal quotation marks and citation omitted). As for
his access to courts claim, Wanzer failed sufficiently to allege that the
confiscation of his legal materials frustrated or impeded a nonfrivolous legal
claim. See Lewis v. Casey, 518 U.S. 343, 351–53 (1996); see also DeMarco v.
Davis, 914 F.3d 383, 387–88 (5th Cir. 2019). Wanzer also failed to state a
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claim that prison officials retaliated against him by confiscating his legal
materials. DeMarco, 914 F.3d at 388. His pleadings and exhibits demonstrate
that officials have confiscated documents from Wanzer due to his failure to
follow prison policy for storing property. Moreover, his allegations of a
retaliatory motive are speculative. See Twombly, 550 U.S. at 555; DeMarco,
914 F.3d at 388.
Wanzer has failed sufficiently to brief, and has thus abandoned,
challenges to the district court’s other rulings. See Yohey v. Collins, 985 F.2d
222, 224–25 (5th Cir. 1993). Because Wanzer’s appeal does not involve
“legal points arguable on their merits,” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation marks and citation omitted), his motion to
proceed IFP is DENIED and the appeal is DISMISSED as frivolous, see
Baugh, 117 F.3d at 202 n.24; see also 5th Cir. R. 42.2.
The dismissal of this appeal as frivolous counts as an additional strike
against Wanzer under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388
(5th Cir. 1996), abrogated in part on other grounds by Coleman v. Tollefson, 575
U.S. 532, 536–37 (2015). Wanzer is REMINDED that he remains subject
to the 28 U.S.C. § 1915(g) bar and WARNED that any future frivolous or
repetitive filings in this court or any court subject to this court’s jurisdiction
may subject him to additional strikes or monetary sanctions, as will the failure
to withdraw any pending matters that are frivolous, repetitive, or otherwise
abusive.
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