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West v. Thompson ( 2021 )


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  • Case: 19-31039     Document: 00515726496          Page: 1    Date Filed: 01/29/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 29, 2021
No. 19-31039                         Lyle W. Cayce
Clerk
Titus Lee West,
Plaintiff—Appellant,
versus
Darian Thompson, Assistant Warden, in their Individual Capacities;
Richard Hunt, Former Colonel, in their Individual Capacities,
Defendants—Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:19-CV-332
Before Willett, Ho, and Duncan, Circuit Judges.
Per Curiam:*
Titus Lee West, Louisiana prisoner # 485180, moves for leave to
proceed in forma pauperis (IFP) from the dismissal of his
    42 U.S.C. § 1983
    civil rights complaint against Darian Thompson and Richard Hunt, both of
whom at the time of the alleged incident were employed by the Louisiana
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-31039      Document: 00515726496           Page: 2   Date Filed: 01/29/2021
No. 19-31039
Department of Corrections at the Louisiana State Penitentiary in Angola.
West asserted that the defendants violated the Eighth Amendment by
adopting a policy of double celling inmates who were confined in
administrative segregation on protective custody. He further alleged that
excessive force was used against him by another correctional officer when he
refused to return to his cell due to threats made by his cellmate. The district
court granted partial summary judgment in favor of Thompson and
dismissed West’s claims against Hunt for failure to effect timely service.
By moving to proceed IFP, West challenges the certification that his
appeal is not in good faith. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir.
1997). He must show that his “appeal involves ‘legal points arguable on their
merits (and therefore not frivolous).’” Howard v. King,
    707 F.2d 215
    , 220
(5th Cir. 1983) (citation omitted). We may dismiss the appeal “when it is
apparent that an appeal would be meritless.” See Baugh,
    117 F.3d at 
    202
& n.24; see 5th Cir. R. 42.2.
“Summary judgment is proper if the pleadings and evidence show
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.” Hernandez v. Yellow Transp., Inc.,
    670 F.3d 644
    , 650 (5th Cir. 2012); see Fed. R. Civ. P. 56(a). The nonmovant
“cannot    defeat     summary    judgment       with   conclusory   allegations,
unsubstantiated assertions, or only a scintilla of evidence.” Hathaway v.
Bazany,
    507 F.3d 312
    , 319 (5th Cir. 2007) (internal quotation marks and
citations omitted).
West does not challenge the district court’s determination that he
failed to allege direct personal involvement on the part of Thompson with
regard to the use of force. Thus, any challenge is now deemed abandoned.
See Raj v. La. State Univ.,
    714 F.3d 322
    , 327 (5th Cir. 2013); Brinkmann v.
Dallas Cnty. Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1993).
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Case: 19-31039      Document: 00515726496          Page: 3   Date Filed: 01/29/2021
No. 19-31039
Although West disputes Thompson’s identification of Directive No. 09.046
as the policy utilized to implement the double celling of inmates confined in
administrative segregation on protective custody, he fails to demonstrate a
nonfrivolous issue for appeal with respect to the district court’s
determination that the policy was not unconstitutional.         See Rhodes v.
Chapman,
    452 U.S. 337
    , 348-49 (1981); Bell v. Wolfish,
    441 U.S. 520
    , 542
(1979). Thus, he also fails to demonstrate a nonfrivolous issue for appeal with
respect to the grant of summary judgment in favor of Thompson. See Porter
v. Epps,
    659 F.3d 440
    , 446 (5th Cir. 2011).
Finally, West does not challenge the district court’s dismissal of his
claims against Hunt for failure to effect timely service. Thus, these claims
are deemed abandoned. See Raj, 714 F.3d at 327; Brinkmann, 813 F.2d at 748.
Because West identifies no nonfrivolous issue for appeal, his IFP motion is
DENIED, and the appeal is DISMISSED as frivolous. See Baugh,
    117 F.3d at 
    202 & n.24; 5th Cir. R. 42.2.
3