Pate v. Cockrell ( 2003 )


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  •                                                          United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                   April 1, 2003
    Charles R. Fulbruge III
    Clerk
    No. 02-11315
    Summary Calendar
    CHEYENNE PATE,
    Plaintiff-Appellant,
    versus
    JANIE COCKRELL; ET AL.,
    Defendants,
    ROBERT TREON; J. MOONEYHAM; KENNETH R. BRIGHT, Jr.,
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 7:02-CV-46-R
    --------------------
    Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    Cheyenne Pate, a Texas prisoner (# 773478), challenges the
    district court’s denial of his application to proceed in forma
    pauperis (“IFP”) on appeal following the district court’s
    granting of several defendants’ motion to dismiss pursuant to
    FED. R. CIV. P. 12(b)(6).    By moving to proceed IFP, Pate is
    challenging the district court’s certification that he should not
    *
    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    that this opinion should not be published and is not precedent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.
    No. 02-11315
    -2-
    be granted IFP status because his appeal is not taken in good
    faith.   See Baugh v. Taylor, 
    117 F.3d 197
    , 202 (5th Cir. 1997);
    
    28 U.S.C. § 1915
    (a)(3); FED. R. APP. P. 24(a).
    In his complaint, Pate asserted that he is a former gang
    member of the Aryan Brotherhood of Texas (“ABT”) who quit the ABT
    due to health problems and “turning his life over to God.”     He
    maintained that the ABT had placed a “hit” on him and that the
    defendants had failed to protect him from this threat; he alleged
    that they should have placed him in protective custody or
    safekeeping.   Pate also alleged that the defendants’ inaction
    had forced him to remain in his cell for 24 hours a day, thus
    depriving him of recreational privileges.
    Prison officials have a duty under the Eighth Amendment to
    protect inmates from violence at the hands of other prisoners.
    Farmer v. Brennan, 
    511 U.S. 825
    , 833 (1994); see also Horton
    v. Cockrell, 
    70 F.3d 397
    , 400-02 (5th Cir. 1995).
    Before granting the defendants’ motion to dismiss, the
    district court had dismissed Pate’s claims against Texas
    Department of Criminal Justice--Institutional Division (“TDCJ-
    ID”) Director Janie Cockrell and Classification Committee member
    Rogers, based on Pate’s failure to establish a causal connection
    between these defendants and the constitutional violations
    asserted.   The district court did not err in dismissing the
    claims against these party defendants because Pate had alleged
    only that he had sent a letter to Cockrell’s TDCJ-ID predecessor
    No. 02-11315
    -3-
    and that Rogers had caused him to be transferred to a new prison
    facility.    See Woods v. Edwards, 
    51 F.3d 577
    , 583 (5th Cir.
    1995).
    Pate had been transferred to Allred Unit, where several of
    the named defendants worked, and he alleged that the Allred
    defendants failed to protect him by refusing to place him in
    protective custody.    Pate, who does not allege that he has
    actually been assaulted, has failed to make allegations that are
    sufficient to establish that the defendants should have been
    “‘aware of facts from which the inference could be drawn that a
    substantial risk of serious harm exist[ed].’”    Newton v. Black,
    
    133 F.3d 301
    , 308 (5th Cir. 1998) (quoting Farmer, 
    511 U.S. at 837
    ).    His claims for injunctive relief against the Allred
    defendants are now moot because he has been transferred to a
    third prison.    See Herman v. Holiday, 
    238 F.3d 660
    , 665 (5th
    Cir. 2001).
    Insofar as Pate has alleged that the defendants’
    inattentiveness to his personal safety forced him to forego
    recreational privileges in violation of his Eighth Amendment
    rights, Pate has failed to establish that the defendants acted
    with deliberate indifference to a substantial risk of harm to
    his health or that the recreational privileges offered by the
    defendants were inadequate to ensure his personal safety.       See
    Herman, 
    238 F.3d at 664
    .
    No. 02-11315
    -4-
    Pate has failed to show that the claims that were dismissed
    present nonfrivolous issues for appeal.    Accordingly, we uphold
    the district court’s order certifying that the appeal is not
    taken in good faith.   Pate’s request for IFP status 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” for purposes of 
    28 U.S.C. § 1915
    (g), as does the district court’s dismissal of his
    complaint for failure to state a claim.     See Adepegba v. Hammons,
    
    103 F.3d 383
    , 388 (5th Cir. 1996).    Pate is cautioned that if he
    accumulates three strikes, he will not be permitted 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 
    28 U.S.C. § 1915
    (g).
    IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; THREE-STRIKES BAR
    WARNING ISSUED.