Dennis Gallipeau v. Luisa Martinez ( 2015 )

Case: 14-60667 Document: 00513108825 Page: 1 Date Filed: 07/08/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-60667 FILED
July 8, 2015
Lyle W. Cayce
DENNIS M. GALLIPEAU, Clerk
Plaintiff-Appellant
v.
LUISA MARTINEZ, MD,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:13-CV-843
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
Dennis M. Gallipeau, federal prisoner # 16472-171, moves for leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his Bivens 1
complaint. Gallipeau claimed that Dr. Luisa Martinez violated his Eighth
Amendment right to adequate medical care. The district court granted
Martinez’s motion for summary judgment and dismissed the suit after
concluding that Gallipeau failed to exhaust his administrative remedies.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
1 Bivens v. Six Unknown Agents, 403 U.S. 388 (1971).
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No. 14-60667
Denying his motion for leave to proceed IFP on appeal, the district court
certified that the appeal was not taken in good faith.
By moving to proceed IFP, Gallipeau is challenging 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 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). We may dismiss the
appeal under 5th Circuit Rule 42.2 if it is frivolous. See Baugh, 117 F.3d at
202 n.24; 5TH CIR. R. 42.2.
We review de novo a grant of summary judgment, applying the same
standard as the district court. Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d
752, 754 (5th Cir. 2011). “The [district] court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a).
Our review of the record reveals no error in the district court’s judgment.
Prior to bringing suit, a prisoner must exhaust all available administrative
remedies. See 42 U.S.C. §1997e(a). Gallipeau filed an initial BP-8 form in
which he complained that Martinez had been unwilling to treat his shoulder
injury. In response to that request, prison officials scheduled an appointment
for Gallipeau to see Martinez. After an appointment with Martinez, Gallipeau
expressed his dissatisfaction with the treatment plan and a desire to file
administrative grievances against her. Although Gallipeau argues that he was
not required to pursue additional administrative remedies after receiving a
favorable response to his initial grievance, his complaint attacked the
adequacy of care and prescribed treatment plan arising out of that
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No. 14-60667
appointment. Gallipeau failed to seek any administrative remedy based on his
dissatisfaction with the medical care received from Martinez and, therefore,
the district court correctly granted Martinez’s motion for summary judgment
on exhaustion grounds. See Nickell, 636 F.3d at 754.
In light of the foregoing, Gallipeau has not shown that he will raise a
nonfrivolous issue for appeal. See Howard, 707 F.2d at 219-20. Accordingly,
his 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.
Finally, the district court erroneously imposed a strike against Gallipeau
under 28 U.S.C. § 1915(g), which only specifies strikes for actions and appeals
that were dismissed on the grounds that they were frivolous, malicious, or
failed to state a claim. Therefore, the court’s summary judgment dismissal of
Gallipeau’s suit does not count as a strike under § 1915(g). However, our
dismissal of this appeal as frivolous counts as one strike for purposes of
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
We warn Gallipeau that once he accumulates three strikes, he may not 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).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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