Pate v. Cockrell ( 2003 )

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that this opinion should not be published and is not precedent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.