Taylor v. LeBlanc ( 2021 )

Case: 20-30264 Document: 00515918998 Page: 1 Date Filed: 06/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 29, 2021
No. 20-30264
Lyle W. Cayce
Clerk
Marion Taylor,
Plaintiff—Appellant,
versus
James M. LeBlanc; Darrel Vannoy,
Defendants—Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:19-CV-537
Before Stewart, Graves, and Higginson, Circuit Judges.
Per Curiam:*
Marion Taylor, Louisiana prisoner # 558611, moves for leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his amended
42 U.S.C. § 1983 complaint for failure to state a claim against the two named
defendants: James M. LeBlanc, the Secretary of the Louisiana Department
of Corrections, and Darrel Vannoy, the Warden of the Louisiana State
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-30264 Document: 00515918998 Page: 2 Date Filed: 06/29/2021
No. 20-30264
Penitentiary. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1).
Taylor does not challenge the district court’s determination that he lacked
standing to raise claims on behalf of other prisoners or its refusal to exercise
supplemental jurisdiction; he has therefore abandoned any such challenges.
See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993); Brinkmann v. Dallas
Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
By moving to proceed IFP in this court, Taylor challenges the district
court’s certification that his appeal is not taken in good faith. 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 citations omitted). We review de novo the
dismissal of Taylor’s § 1983 complaint for failure to state a claim using the
same standard applicable to dismissals under Federal Rule of Civil Procedure
12(b)(6). See Praylor v. Tex. Dep’t of Crim. Just., 430 F.3d 1208, 1208 (5th
Cir. 2005). “[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 Parish Det. Ctr., 858 F.3d 307, 309 (5th
Cir. 2017) (internal quotation marks and citation omitted).
As the district court correctly observed, Taylor failed to identify
specifically any action that either defendant took or any policy that either
implemented, which subjected Taylor to unconstitutional prison conditions.
See Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987). His conclusory
allegations were not sufficient to state a claim. See Coleman, 858 F.3d at 309.
Taylor has failed to identify any issue of arguable merit. Howard, 707 F.2d at
220.
Accordingly, Taylor’s motions for leave to proceed IFP and to
supplement his brief and the record on appeal are DENIED, and his appeal
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No. 20-30264
is DISMISSED as frivolous. See 5th Cir. R. 42.2. Both the district
court’s dismissal of Taylor’s complaint for failure to state a claim and this
court’s dismissal of the appeal as frivolous count as strikes for purposes of
§ 1915(g). See § 1915(g); 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,
537 (2015). Additionally, the district court dismissed Taylor’s complaint in
a separate case for failure to state a claim. See Taylor v. LeBlanc, No. 17-1699,
2020 WL 4589995 (M.D. La. Aug. 10, 2020). Even though Taylor’s appeal
of that dismissal is currently pending, the dismissal counts as a third strike
for purposes of § 1915(g). See Coleman, 575 U.S. at 534, 537.
Because he now has three strikes, Taylor is BARRED from
proceeding 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). He is WARNED
that any pending or future frivolous or repetitive filings in this court or any
court subject to this court’s jurisdiction may subject him to additional
sanctions, and he is DIRECTED to review all pending matters and move to
dismiss any that are frivolous, repetitive, or otherwise abusive.
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