Newman v. Bowers ( 2023 )

Case: 23-20060 Document: 00516904811 Page: 1 Date Filed: 09/22/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 22, 2023
No. 23-20060
Lyle W. Cayce
Summary Calendar Clerk
____________
LaTorrence Torell Newman,
Plaintiff—Appellant,
versus
Rodger Bowers, Warden; Julia Rodriguez, Major; Doctor
Paul A. Hindmon; Robin Rothrock, Doctor,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:22-CV-1649
______________________________
Before Haynes, Willett, and Duncan, Circuit Judges.
Per Curiam: *
LaTorrence Torell Newman, Texas prisoner #2030330, moves to
proceed in forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C.
§ 1983 complaint against Warden Rodger Bowers, Major Julia Rodriguez, Dr.
Paul Hindmon, and Dr. Robin Rothrock regarding his treatment while in the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-20060
Wynne Unit for failure to state a claim or as moot. He also moves for the
appointment of counsel.
Newman argues that his correspondence with Wynne Unit prison
officials regarding compliance with his previous settlement agreement was
ignored and that he faced retaliation. However, he has not demonstrated a
nonfrivolous issue regarding the district court’s determination that his claims
based on the defendants’ failure to comply with the settlement agreement
failed to state a claim because he did not allege that they violated any of his
rights when officials cut other inmates’ facial hair and because he could not
act as counsel for other inmates. See Powers v. Ohio, 499 U.S. 400, 410 (1991);
Barrows v. Jackson, 346 U.S. 249, 255 (1953); Gonzales v. Wyatt, 157 F.3d
1016, 1021 (5th Cir. 1998). To the extent that he newly alleges retaliation on
appeal, he may not do so. See Leverette v. Louisville Ladder Co., 183 F.3d 339,
342 (5th Cir. 1999).
He also contends that when he was transferred to the Johnson Unit on
December 16, 2022, Officer Eagan made him shave off his goatee, even
though he showed Eagan proof that he had won his settlement. However, he
did not include the facts or defendants involved in this intervening incident
in his amended complaint or in his response to the court’s order for a more
definite statement, and he may not raise new claims for the first time on
appeal. See id.Newman’s argument regarding mootness involves only his claims
regarding the facial-hair policy, which were not dismissed as moot, rather
than his claims against Hindmon and Rothrock regarding their refusal to help
him move to a dormitory after he complained of secondhand K-2 smoke from
his cellmates, which were dismissed as moot. Thus, he fails to meaningfully
brief this issue, and it is abandoned. See Hughes v. Johnson, 191 F.3d 607, 613
(5th Cir. 1999); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Even
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if his argument could be read as a challenge to the district court’s ruling on
this claim against Hindmon and Rothrock, Newman does not meaningfully
challenge the district court’s alternative determination that he failed to state
a claim because there was no indication that Hindmon and Rothrock had any
ability to affect his cell assignment. Additionally, his arguments that Bowers
and Rodriguez ignored his requests to move him out of a cell with secondhand
smoke do not address the district court’s determination that he failed to state
a claim regarding this issue because he did not have a liberty interest in being
housed in a particular facility. Any challenge to this determination is also
abandoned. See Hughes, 191 F.3d at 613; Yohey, 985 F.2d at 224-25;
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
Likewise, Newman does not challenge the district court’s
determinations that (1) he failed to state a claim against Bowers and
Rodriguez in their official capacities because they were entitled to Eleventh
Amendment immunity, and (2) he failed to state a claim regarding his
argument that Rodriguez violated prison policy. Thus, he has abandoned
these issues as well. See Hughes, 191 F.3d at 613; Yohey, 985 F.2d at 224-25;
Brinkmann, 813 F.2d at 748.
Because Newman fails to show that his appeal raises a nonfrivolous
issue, his motion to proceed IFP is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th
Cir. 1997); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5th Cir. R.
42.2. Additionally, his motion for the appointment of counsel is DENIED,
and, to the extent he moves for summary judgment, his motion is DENIED.
This dismissal of this appeal as frivolous counts as a strike under 28
U.S.C. § 1915(g); see Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996),
abrogated in part on other grounds by Coleman v. Tollefson, 575 U.S. 532, 537
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(2015). Newman is WARNED that if he accumulates three strikes, he will
be barred from proceeding 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 § 1915(g).
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