Gary Robinson v. Randy Ely ( 2013 )

Case: 13-50433 Document: 00512452687 Page: 1 Date Filed: 11/25/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-50433 FILED
November 25, 2013
Lyle W. Cayce
GARY DON ROBINSON, Clerk
Plaintiff-Appellant
v.
RANDY ELY, United States Marshall, Northern District; WARDEN WILSON;
JOHN DOE, I, Lubbock, Texas, United States Deputy Marshall; JOHN DOE
II, Abilene, Texas, Northern District of Texas; CHIEF FNU ADAMS;
LIEUTENANT FNU MCQUEEN; DAVID SLOAN; FEDERAL BUREAU OF
PRISONS; MADELINE CHIGOY,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:10-CV-220
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Gary Don Robinson, federal prisoner # 35337-177, was convicted on
numerous counts involving counterfeit securities and was sentenced to a total
of 180 months of imprisonment. He rejected court-appointed counsel and chose
to proceed pro se at trial and on direct appeal; his direct appeal was dismissed
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50433
for failure to prosecute. United States v. Robinson, No. 09-11043 (5th Cir. Apr.
20, 2010) (unpublished). He then filed a civil action in which he asserted
various claims, all pertaining to the difficulties he allegedly experienced in
representing himself at trial and on direct appeal. The district court dismissed
the action under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil
Procedure, and it certified that Robinson’s appeal was not taken in good faith.
By moving to proceed in forma pauperis (IFP) in this court, Robinson is
challenging the district court’s certification. 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). In addition, when the
trial court’s certification decision is inextricably intertwined with the merits of
the case, this court may dispose of the appeal on its merits. Baugh, 117 F.3d
at 202 n.24; 5TH CIR. R. 42.2. We may take judicial notice of our own records
or those of the district court. See ITT Rayonier Inc. v. United States, 651 F.2d
343, 345 n.2 (5th Cir. 1981).
Robinson’s IFP motion lists 10 issues; however, several of the listed
issues are not adequately briefed. Robinson has failed to address the district
court’s dismissal of his claims against defendants Sloan and the Bureau of
Prisons, and he likewise does not address whether the district court abused its
discretion in refusing to grant limited discovery, dismissing his claims under
42 U.S.C. § 1997e, and refusing to allow the amendment of his complaint.
Accordingly, he is deemed to have abandoned these issues. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
We address only the issues adequately briefed by Robinson. His claim of
denial of access to the courts fails because he rejected the assistance of court-
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appointed counsel at trial and on direct appeal. See Degrate v. Godwin, 84 F.3d
768, 769 (5th Cir. 1996). Robinson fails to state an Eighth Amendment claim
based on his placement in facilities where he allegedly had inadequate access
to a law library or legal materials; such allegations do not suggest conditions
of confinement that were “so serious as to deprive him of the minimal measure
of life’s necessities, as when denied some basic human need.” Berry v. Brady,
192 F.3d 504, 507 (5th Cir. 1999). Robinson’s claim that he was retaliated
against by being transferred to facilities that did not have adequate law
libraries was properly dismissed, as his allegations were conclusional and did
not permit the plausible inference of a retaliatory motive on the part of any
defendant. See Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999); Woods
v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Robinson failed to state a “class
of one” equal protection claim because his allegations did not identify any
similarly situated prisoners, nor did his allegations 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 (2000). Because
he fails to state a claim of an underlying constitutional violation, Robinson
cannot establish a claim against defendant Ely for supervisory liability or for
implementation of an allegedly unconstitutional policy. See Becerra v. Asher,
105 F.3d 1042, 1048 (5th Cir. 1997).
With regard to defendant Chigoy, even if we accept Robinson’s
contention that she was not entitled to absolute immunity with respect to the
sending of notices, the district court did not reversibly err in dismissing
Robinson’s due process claim. The briefing notices provided by Chigoy in No.
09-10703 and in No. 09-11043 were constitutionally sufficient as they provided
notice and an opportunity to be heard. See Childs v. State Farm Mut. Auto.
Ins., 29 F.3d 1018, 1027 (5th Cir. 1994). Chigoy’s alleged failure to mail the
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briefing notice in No. 09-11403 to the facility to which Robinson had been
transferred indicates nothing more than possible negligence or oversight on
her part, which is insufficient to establish a due process violation. See Daniels
v. Williams, 474 U.S. 327, 328 (1986). Finally, because Robinson’s allegations
contained nothing more than “a conclusory allegation of agreement,” and thus
were not “enough to raise a right to relief above the speculative level,” the
district court did not err in dismissing the claim that Chigoy conspired with
the other defendants to deny Robinson access to the courts. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007).
In view of the foregoing, Robinson’s appeal is without arguable merit and
is thus frivolous. See Howard, 707 F.2d at 219-20. Because the appeal is
frivolous, it is dismissed. 5TH CIR. R. 42.2. Robinson’s IFP motion is denied.
The district court’s judgment dismissing the complaint for failure to
state a claim counts as a strike for purposes of 28 U.S.C. § 1915(g), as does the
dismissal, as frivolous, of the instant appeal. See Adepegba v. Hammons, 103
F.3d 383, 388 (5th Cir. 1996). Robinson has two prior strikes. See Robinson v.
Texas Dep’t of Criminal Justice-Board of Pardons & Parole, 54 F. App’x 407,
407, 2002 WL 31688951, *1 (5th Cir. 2002). Thus, he has now accumulated at
least three strikes. Robinson is now barred under § 1915(g) from bringing a
civil action or an appeal from a judgment in a civil action or proceeding under
§ 1915 unless he is under imminent danger of serious physical injury.
APPEAL DISMISSED AS FRIVOLOUS; IFP MOTION DENIED: 28
U.S.C. § 1915(g) BAR IMPOSED.
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