Cushenberry v. Cowan ( 2021 )

Case: 20-30135 Document: 00515984089 Page: 1 Date Filed: 08/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 18, 2021
No. 20-30135
Lyle W. Cayce
Clerk
Leonardo Cushenberry,
Plaintiff—Appellant,
versus
Amanda Cowan; Jamie Cashio,
Defendants—Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:17-CV-402
Before Southwick, Graves, and Costa, Circuit Judges.
Per Curiam:*
In this 42 U.S.C. § 1983 action, Leonardo Cushenberry, Louisiana
prisoner # 297345, alleges that all prison officials and employees named as
defendants in this suit violated his Eighth Amendment rights by
demonstrating deliberate indifference to his serious medical needs.
Additionally, he alleged a violation of due process.
*
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opinion should not be published and is not precedent except under the limited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: 20-30135 Document: 00515984089 Page: 2 Date Filed: 08/18/2021
No. 20-30135
The district court rendered final judgment against Cushenberry,
ruling that his complaint as amended implicates no violation of his
constitutional rights. Also, citing 28 U.S.C. § 1915(a)(3) and Federal Rule of
Appellate Procedure 24(a)(3), the district court determined that
Cushenberry does not appeal in good faith and therefore denied him
permission to proceed in forma pauperis (IFP) on appeal.
Cushenberry seeks our permission to appeal IFP to challenge the
district court’s denial of IFP status and certification that his appeal is not in
good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997);
§ 1915(a)(3); Fed. R. App. P. 24(a)(3)(A). Good faith is lacking anytime
the appeal does not involve “legal points arguable on their merits.” Howard
v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and
citations omitted). A filing that “lacks an arguable basis in law or fact” is
frivolous, “and a complaint lacks such a basis if it relies on an indisputably
meritless legal theory.” Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001).
Cushenberry does not show that his appeal presents a nonfrivolous
issue. See id. He does not address the district court’s reasoning that: his
claim against Assistant Warden Tracey Falgout for action allegedly taken in
2013 is time barred; the official capacity claims for damages are barred by the
Eleventh Amendment; his claims of respondeat superior liability against
Secretary James LeBlanc, Warden Darryl Vannoy, Dr. Randy Lavespere, and
Falgout fail to state an actionable claim; and he fails to establish a due process
violation based on an allegedly false disciplinary charge. With regard to those
matters, Cushenberry has effectively abandoned any contention that he has
claims arguable in law or fact and that he appeals in good faith. See
Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Cushenberry’s
other claims rely on indisputably meritless legal theories and are
consequently frivolous. See Taylor, 257 F.3d at 472; see also Gobert v.
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No. 20-30135
Caldwell, 463 F.3d 339, 346 (5th Cir. 2006); Stewart v. Murphy, 174 F.3d 530,
534 (5th Cir. 1999); Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995);
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Therefore,
Cushenberry’s IFP motion is DENIED, and this appeal is DISMISSED
as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5th Cir. R. 42.2; Fed.
R. App. P. 24(a)(3)(A). Cushenberry’s motion for judicial notice is
DENIED as well.
Cushenberry is ADVISED that the dismissal of this appeal as
frivolous counts as a strike under § 1915(g). See Coleman v. Tollefson, 575 U.S.
532, 535-37 (2015). Additionally, Cushenberry is WARNED that frivolous,
repetitive, or otherwise abusive filings will invite the imposition of additional
sanctions, which may include dismissal, monetary sanctions, and restrictions
on his ability to file pleadings in this court and any court subject to this court’s
jurisdiction. See Coghlan v. Starkey, 852 F.2d 806, 817 n.21 (5th Cir. 1988).
Further, Cushenberry is WARNED that he ought to review such appeals
and actions as he may have pending and move to dismiss any frivolous ones.
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