Andrew Dixon v. Darrel Vannoy, Warden

Case: 15-30908 Document: 00513853223 Page: 1 Date Filed: 01/27/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________
United States Court of Appeals
Fif h Circuit
No. 15-30908 FILED
__________ January 27, 2017
Lyle W. Cayce
Clerk
ANDREW DIXON,
Plaintiff–Appellant,
versus
DARREL VANNOY, Warden,
Louisiana State Penitentiary; James M. LeBlanc,
Defendants–Appellees.
_______________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:14-CV-451
_______________________
Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *
Andrew Dixon, Louisiana prisoner # 514514, moves for leave to proceed
in forma pauperis (“IFP”) to appeal the dismissal of his 42 U.S.C. § 1983* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-30908 Document: 00513853223 Page: 2 Date Filed: 01/27/2017
No. 15-30908
complaint. He claims that the defendants interfered with his constitutional
right to marry and violated his rights to equal protection and due process when
they refused to add his fiancee, a former nurse at the Louisiana State Peniten-
tiary, to his list of approved visitors.
By moving to proceed IFP, Dixon challenges the district court’s certifica-
tion that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997). Our inquiry into good faith “is limited to whether the
appeal involves legal points arguable on their merits (and therefore not frivo-
lous).” See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citations omitted).
The prison policy prohibiting ex-employees from visiting offenders who
are not immediate family members is based on legitimate penological objec-
tives and is a permissible exercise of the discretion afforded prison officials.
See Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999); Lynott v. Henderson,
610 F.2d 340, 342–43 (5th Cir. 1980). In light of the circumstances of Dixon’s
fiancee’s resignation and the warden’s determination that she poses a risk to
institutional safety and security, the application of the policy did not violate
Dixon’s constitutional rights. See Berry, 192 F.3d at 508.
Dixon’s theory that, in light of the prison’s marriage requirements, the
defendants have effectively prevented him from marrying his fiancee is specu-
lative at best. Neither Dixon nor his fiancee has submitted to the warden a
formal request to marry. Accordingly, Dixon’s averment that the defendants
interfered with his right to marry is premature. See United States v. Carmi-
chael, 343 F.3d 756, 761 (5th Cir. 2003).
Dixon has not identified any nonfrivolous issue for appeal. See Howard,
707 F.2d at 220. The motion to proceed IFP is DENIED, and the appeal is
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No. 15-30908
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). See Coleman v. Tollefson, 135 S. Ct. 1759, 1761–64
(2015); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Dixon is
CAUTIONED that if he accumulates three strikes, he will no longer be allowed
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 § 1915(g).
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