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Gonzalez v. Gillis ( 2022 )


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  • Case: 21-60764     Document: 00516285466       Page: 1    Date Filed: 04/19/2022
United States Court of Appeals
for the Fifth Circuit                              United States Court of Appeals
Fifth Circuit
FILED
April 19, 2022
No. 21-60764                            Lyle W. Cayce
Summary Calendar                               Clerk
Louis Gonzalez, Individually and on behalf of all others similarly
situated, Plaintiffs, also known as Carlos Ramos Sanchez,
Plaintiff—Appellant,
versus
Warden Shawn R. Gillis; Unit Manager Joseph January,
In his individual and official capacity; Unit Counselor Cynthia
Pernell, In her individual and official capacities; Custody Officer
Tatyana Lewis, In her individual and official capacities; Custody
Officer Randy Woods, Jr., In his individual and official capacities;
Jerome Brown; Kila Blanton; Vandriana Norman;
Michael Wells,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:20-CV-158
Before Smith, Higginson, and Willett, Circuit Judges.
Case: 21-60764      Document: 00516285466           Page: 2   Date Filed: 04/19/2022
No. 21-60764
Per Curiam:*
Louis Gonzalez, immigration detainee # A209-413-252, has moved to
proceed in forma pauperis (IFP) on appeal from the district court’s dismissal
of his complaint raising claims arising under
    42 U.S.C. § 1983
    ,
    42 U.S.C. § 1985
    (3), Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
    403 U.S. 388
     (1971), and state law. The district court denied Gonzalez leave
to proceed IFP on appeal and certified that the appeal was not taken in good
faith. By moving in this court to proceed IFP, Gonzalez is challenging the
district court’s certification decision. See Baugh v. Taylor,
    117 F.3d 197
    , 202
(5th Cir. 1997). Our inquiry 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).
Regarding his claims arising under § 1983, Gonzalez has expressly
abandoned any challenge to the district court’s dismissal of them. Instead,
Gonzalez first argues that the district court erred in finding that his request
for injunctive relief was moot. Because he was transferred from the offending
institution and cannot either show a demonstrated probability or a reasonable
expectation that he would be transferred back there or show that he likely
would be released and later detained there again, any claim for injunctive
relief is moot. See Oliver v. Scott,
    276 F.3d 736
    , 741 (5th Cir. 2002).
He also argues that the district court wrongly found that he could not
raise an equal protection claim against the defendants in a Bivens suit because
they work at a privately operated institution. Neither the Supreme Court nor
any circuit yet has recognized a cause of action under Bivens against
employees of privately run prisons or private entities acting under color of
*
Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.
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Case: 21-60764       Document: 00516285466           Page: 3   Date Filed: 04/19/2022
No. 21-60764
federal law, Minneci v. Pollard,
    565 U.S. 118
    , 131 (2012); Correctional Services
Corp. v. Malesko,
    534 U.S. 61
    , 63-64 (2001); Ziglar v. Abbasi,
    137 S. Ct. 1843
    ,
1857 (2017), and Gonzalez has not given analysis that would justify a new
Bivens remedy as to his immigration detention complaints.
Gonzalez further asserts that the district court erred in determining
that he did not allege a conspiracy claim under
    42 U.S.C. § 1985
    (3) based on
the defendants’ purported discriminatory conduct. However, he has offered
no specific facts to support his assertion that there was a conspiracy to
deprive him of his constitutional rights on account of his race. His conclusory
allegations of an agreement do not state a plausible conspiracy claim. See
Body by Cook, Inc. v. State Farm Mut. Auto. Ins.,
    869 F.3d 381
    , 389-90 (5th Cir.
2017).
Finally, Gonzalez contends that the district court erred in finding that
he did not allege sufficient facts to state a claim under Mississippi law for the
tort of intentional infliction of emotional distress. There is no indication that
the actions alleged by Gonzalez evoke outrage or revulsion in civilized society
and exceed all possible bounds of decency such that they are viewed as
atrocious and entirely intolerable. See White v. Walker,
    950 F.2d 972
    , 978
(5th Cir. 1991); see also Tebo v. Tebo,
    550 F.3d 492
    , 497 (5th Cir. 2008).
Gonzalez does not raise a nonfrivolous issue for appeal, and his IFP
motion is denied. See Baugh,
    117 F.3d at 202
    . The appeal lacks arguable merit
and is dismissed as frivolous. See
    id.
     at 202 n.24; Howard,
    707 F.2d at 
    219-
20; 5th Cir. R. 42.2.
IFP MOTION DENIED; APPEAL DISMISSED.
3