Jauve Collins v. Trish Foster ( 2015 )

Case: 14-30989 Document: 00512965729 Page: 1 Date Filed: 03/11/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30989
United States Court of Appeals
Fifth Circuit
FILED
JAUVE COLLINS, March 11, 2015
Lyle W. Cayce
Plaintiff-Appellant Clerk
v.
TRISH FOSTER, Individual Capacity Official,
Defendant-Appellee
Appeals from the United States District Court for the
Middle District of Louisiana
USDC No. 3:13-CV-232
Before SMITH, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Jauve Collins, Louisiana prisoner # 551251, moves for leave to proceed
in forma pauperis (IFP) on appeal from the grant of summary judgment for the
defendant in part and the dismissal in part of his 42 U.S.C. § 1983 action.
Collins alleged that Trish Foster, the Legal Programs Director at the Louisiana
State Penitentiary, reviewed his legal mail outside of his presence in violation
of his constitutional rights and that Foster interfered with his right of access
to the courts. The district court granted Foster summary judgment on the legal
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-30989
mail claim and dismissed the access to courts claim for failure to state a claim.
The district court also denied Collins’s motion for leave to proceed IFP on
appeal, certifying that the appeal was not taken in good faith.
By moving to proceed IFP in this court, Collins is challenging the trial
court’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997). This court’s inquiry into a
litigant’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).
On appeal, Collins argues that he was not served with a copy of Foster’s
motion for summary judgment or given an opportunity to respond. Collins did
not present any additional arguments or evidence that he would have raised
in an opposition to Foster’s motion if he had been served. The entry of the
summary judgment despite the lack of notice to Collins was harmless error
because Collins has not presented any additional evidence to establish that
there was a genuine issue of material fact. See Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 28 F.3d 1388, 1397-98 (5th Cir.
1994); Crooks v. Thomas, 78 F. App’x 981, 982-84 (5th Cir. 2003).
Next, Collins argues that the district court erred in holding that he did
not have a constitutional right to be present when his legal mail is opened. The
district court did not err in denying this claim. This court has held that
prisoners do not have a constitutional right to be present when privileged, legal
mail is opened and inspected. Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir.
1993); Patel v. Haro, 470 F. App’x 240, 244 (5th Cir. 2012).
Collins does not address or identify any error in the district court’s
dismissal of his claim that Foster interfered with his right of access to the
courts. By failing to brief this issue adequately, he has abandoned it on appeal.
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See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987). Nonetheless, the district court did not err in dismissing this claim
because Collins did not demonstrate that Foster prevented him from filing a
state or federal habeas application. See Christopher v. Harbury, 536 U.S. 403,
415 (2002).
Finally, Collins asserts that the district court did not address his claim
that Foster violated his equal protection and due process rights. He maintains
that he raised this claim at the Spears hearing and that the district court erred
in declining to address it based on its finding that he raised the claim for the
first time in his motion for summary judgment. Because Collins’s claim lacks
merit, the court need not decide whether the district court erred in not
addressing it. Collins has not shown that Foster violated his equal protection
rights as he failed to identify similarly situated prisoners and failed to show
that he was intentionally treated differently from any other prisoners absent
a rational basis. See Village of Willowbrook v. Olech, 528 U.S. 562, 564-65
(2000). In addition, Collins has not shown that Foster violated his due process
rights as he has not demonstrated that he was deprived of a constitutionally
protected life, liberty, or property interest. See Gentilello v. Rege, 627 F.3d 540,
544 (5th Cir. 2010).
In view of the foregoing, Collins has not shown that he will raise a
nonfrivolous issue for appeal. See Howard, 707 F.2d at 219-20. Accordingly,
IT IS ORDERED that Collins’s motion 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.
The dismissal of this appeal as frivolous counts as a strike under 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Collins is ADVISED that if he accumulates three strikes, he will not be
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No. 14-30989
able to 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. See § 1915(g).
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