Ballentine v. Broxton ( 2021 )

Case: 20-50055 Document: 00515977997 Page: 1 Date Filed: 08/13/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 13, 2021
No. 20-50055 Lyle W. Cayce
Clerk
Garland Ballentine,
Plaintiff—Appellant,
versus
Sergeant Heather Broxton; Jay Hart, SIGMO; Vicki
Cundiff, Grievance Department,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:19-CV-459
Before Jolly, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Garland Ballentine, a currently incarcerated prisoner, filed this
lawsuit under 42 U.S.C. § 1983 against Sergeant Heather Broxton, Jay Hart,
and Vicki Cundiff (collectively, “Defendants”), challenging his
administrative segregation (a form of solitary confinement). Among other
*
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opinion should not be published and is not precedent except under the limited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: 20-50055 Document: 00515977997 Page: 2 Date Filed: 08/13/2021
No. 20-50055
claims, he alleged that Defendants violated his constitutional rights by
preventing him from participating in the Gang Renunciation and
Disassociation (“GRAD”) Program—the only avenue out of solitary
confinement for a former gang member—because he refused to cooperate to
the satisfaction of outside law enforcement. Ballentine also petitioned to
proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915.
The district court granted Ballentine’s IFP motion but ordered the
clerk of the court not to issue summons or forward summons to the U.S.
Marshal for service on Defendants. 1 It later dismissed Ballentine’s case with
prejudice, without ever serving Defendants, and therefore, without ever
hearing Defendants’ arguments. After his motion for reconsideration was
denied, Ballentine timely appealed. He was later appointed counsel.
On appeal, Ballentine’s appointed counsel notes that this case
presents complicated questions of constitutional law and favorably cites a
Fifth Circuit case where a state government official was invited to participate
in an appeal. We agree that full consideration of Ballentine’s arguments with
the benefit of the Defendants’ response is appropriate in this case. However,
we conclude that the proper remedy is to remand this case back to the district
court to address these complex issues in the first instance, with the benefit of
briefing from properly served Defendants. See United States v. Hibernia Nat’l
Bank, 841 F.2d 592, 597 (5th Cir. 1988) (remanding to the district court to
make findings in the first instance and, if appropriate, to receive additional
1
We note that a court must order service by a U.S. marshal, deputy, or person
appointed by the court if a “plaintiff is authorized to proceed [IFP].” Fed. R. Civ. P.
4(c)(3); see also Cornish v. Tex. Bd. of Crim. J. Off. of the Inspector Gen., 141 F. App’x 298,
300–01 (5th Cir. 2005) (noting that Rule 4 and 28 U.S.C. § 1915 “require the court to issue
[an IFP] plaintiff’s process to a United States Marshal who must in turn effectuate service
upon the defendants” if “the IFP plaintiff has taken reasonable steps to identify the
defendant(s)” (quotation omitted)).
2
Case: 20-50055 Document: 00515977997 Page: 3 Date Filed: 08/13/2021
No. 20-50055
briefing); see also Outlaw v. Connett, 460 F.2d 1257, 1258 (5th Cir. 1972) (per
curiam) (acknowledging that the plaintiff failed to properly serve the United
States and concluding that, on remand, “the District Court should afford
appellant a reasonable period of time to effect proper service on the United
States”).
Accordingly, we VACATE and REMAND with instructions that
service be made on Defendants and that the district court consider the
arguments of both sides.
3